Colorable Claims, Issue Exhaustion, and CAT Review in Immigration Appeals: Commentary on Hasan v. Bondi (2d Cir. 2025)

I. Introduction

This commentary analyzes the Second Circuit’s summary order in Hasan v. Bondi, No. 23-6531 (2d Cir. Nov. 25, 2025), an immigration case involving a Pakistani national, Najam Ul Hasan, who sought:

a waiver of inadmissibility under INA § 212(h), 8 U.S.C. § 1182(h);
adjustment of status under INA § 245(a), 8 U.S.C. § 1255(a); and
deferral of removal under the Convention Against Torture (CAT).

The Board of Immigration Appeals (BIA) affirmed the Immigration Judge’s (IJ) denial of these forms of relief, and Hasan petitioned the Second Circuit for review. Because Hasan had been ordered removed for an aggravated felony, the case sits squarely at the intersection of:

statutory limits on judicial review of discretionary immigration relief, especially after the Supreme Court’s decision in Patel v. Garland, 596 U.S. 328 (2022); and
the broader judicial authority to review CAT determinations under Nasrallah v. Barr, 590 U.S. 573 (2020).

Although the court’s decision is a summary order and therefore nonprecedential under the Second Circuit’s rules, it is a useful and concrete application of several important doctrines:

what counts as a “colorable” constitutional claim or question of law sufficient to overcome jurisdictional bars;
the evidentiary use of police reports and criminal complaints in discretionary relief proceedings;
how Covid-related or changed-country-conditions evidence is evaluated in hardship and CAT contexts; and
the strict enforcement of issue exhaustion and abandonment doctrines in immigration appeals.

This commentary proceeds by summarizing the decision, situating it within the relevant precedents, unpacking the court’s legal reasoning, and explaining its practical implications for immigration practitioners and litigants.

II. Overview of the Case

A. Parties and Posture

The petitioner, Najam Ul Hasan, is a native and citizen of Pakistan and a Shia Muslim. The respondent is the United States Attorney General, represented here as Pamela Bondi.

Hasan sought three forms of relief before the IJ:

a § 212(h) waiver of inadmissibility, which can forgive certain criminal grounds of inadmissibility if denial would cause “extreme hardship” to qualifying U.S. relatives;
adjustment of status under § 245(a), allowing an eligible noncitizen to become a lawful permanent resident; and
deferral of removal under the CAT, based on fear of torture in Pakistan due to his Shia identity and past targeting by a Sunni organization.

The IJ denied all relief on June 19, 2019. The BIA affirmed on April 24, 2023. Hasan then petitioned the Second Circuit for review.

B. Key Issues on Review

The Second Circuit framed and resolved the case around the following issues:

Jurisdiction over § 212(h) waiver issues: Given the statutory limits on reviewing denials of discretionary relief and aggravated-felony removal orders, what aspects of the waiver denial and related motion to remand could the court review?
Motion to remand with new hardship evidence: Did the BIA err in concluding that new Covid-related evidence would not change the outcome of the hardship/waiver analysis?
Due process and evidentiary use of criminal complaints: Did the IJ violate due process by relying on hearsay in a criminal complaint to weigh Hasan’s negative equities, and by allegedly not allowing him an adequate opportunity to explain?
CAT relief: Did substantial evidence support the agency’s conclusion that Hasan failed to show he would more likely than not be tortured in Pakistan, particularly in light of new Covid-related conditions and his prior asylum grant?
Issue exhaustion and abandonment: Were certain arguments—especially a “law of the case” argument based on a prior asylum determination—preserved for judicial review?

III. Summary of the Court’s Decision

The Second Circuit’s disposition can be summarized as follows:

Petition DISMISSED in part for lack of jurisdiction:
- As to the denial of the § 212(h) waiver and the motion to remand for more hardship evidence, the court held that Hasan raised no colorable constitutional claim or question of law. His arguments were, in substance, challenges to factual determinations and discretionary weighing of equities—matters barred from review by 8 U.S.C. § 1252(a)(2)(B) and (C), as construed in Patel and related cases.
Petition DENIED in part as to CAT:
- On the merits, and under the substantial evidence standard recognized in Nasrallah, the court upheld the denial of CAT relief. It held that Hasan had:
  - failed to meaningfully contest key factual findings (time since last targeting, ability to relocate, lack of widespread anti-Shia torture) and thus abandoned those arguments; and
  - failed to exhaust his “law of the case” theory based on an earlier asylum determination, so that argument was not properly before the court.
All pending motions and stays were denied or vacated.

In short, the removal order remains in place; Hasan does not obtain a waiver, adjustment, or CAT protection.

IV. Doctrinal Framework and Precedents Cited

A. Scope of Judicial Review After Patel v. Garland

The court’s jurisdictional analysis is anchored in 8 U.S.C. § 1252(a)(2)(B), (C), and (D), together with the Supreme Court’s decision in Patel v. Garland, 596 U.S. 328 (2022).

§ 1252(a)(2)(B)(i) bars judicial review of:
“any judgment regarding the granting of relief” under various discretionary provisions, including § 212(h) waivers and § 245 adjustment.
§ 1252(a)(2)(C) bars review of:
“any final order of removal against an alien who is removable” by reason of certain criminal offenses, including aggravated felonies.
§ 1252(a)(2)(D) restores limited review for:
“constitutional claims or questions of law.”

In Patel, the Supreme Court held that:

Federal courts lack jurisdiction to review facts found as part of discretionary-relief proceedings under provisions enumerated in § 1252(a)(2)(B)(i). 596 U.S. at 347.

The Second Circuit relies on Patel to emphasize that Hasan cannot obtain review of:

how the IJ and BIA weighed the evidence of hardship to his relatives; or
the discretionary balancing of favorable and unfavorable equities.

Only colorable legal or constitutional issues remain reviewable. This sets the context for why most § 212(h)-related arguments in this case are jurisdictionally barred.

B. Review of BIA and IJ Decisions – Yan Chen v. Gonzales

The court notes that it reviews the IJ’s decision “as supplemented by the BIA,” citing Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). This standard means:

when the BIA issues its own opinion but adopts or relies on parts of the IJ’s reasoning, the court reviews both to the extent they form the basis of the BIA’s decision;
this composite review is standard in immigration appeals when the BIA does not simply affirm “without opinion.”

C. Discretionary Nature of § 212(h) Waivers – Bugayong & Mendez-Moralez

The court recites the dual structure of § 212(h) waivers, relying on Bugayong v. INS, 442 F.3d 67 (2d Cir. 2006), and the seminal BIA decision In re Mendez-Moralez, 21 I. & N. Dec. 296 (BIA 1996):

Statutory eligibility: The noncitizen must show that denial of admission would result in “extreme hardship” to a qualifying U.S. citizen or LPR spouse, parent, son, or daughter. § 1182(h)(1)(B).
Discretionary relief: Even if eligible, relief can still be denied as a matter of discretion based on a balancing of positive and negative factors, such as:
- length of residence, family ties, community contributions, employment history; versus
- criminal history, evidence of rehabilitation, and other adverse equities.

Bugayong underscores that courts cannot second-guess how the agency weighs those factors as long as no legal or constitutional violation occurs.

D. Motions to Remand – Li Yong Cao and Durant

The court analogizes Hasan’s request to present new Covid-related hardship evidence to a motion to reopen or remand, citing:

Li Yong Cao v. U.S. Department of Justice, 421 F.3d 149 (2d Cir. 2005), which holds that a motion to remand for new evidence may be denied if the movant fails to:
- make a prima facie case of eligibility; or
- demonstrate a likelihood that the new evidence would alter the result.
Durant v. INS, 393 F.3d 113 (2d Cir. 2004), which extends jurisdictional limitations to motions to reopen, reinforcing that procedural posture (direct request vs. motion) does not alter the scope of review where § 1252’s bars apply.

This framework allows the court to treat Hasan’s motion to remand as subject to the same jurisdictional limits that govern direct review of the original waiver decision.

E. Hardship Standards – In re Monreal-Aguinaga

While Monreal-Aguinaga, 23 I. & N. Dec. 56 (BIA 2001), addresses the slightly different “exceptional and extremely unusual hardship” standard for cancellation of removal, the BIA (and thus the court) uses it by analogy for hardship analysis under § 212(h).

Monreal emphasizes:

“A lower standard of living or adverse country conditions” in the country of return may be relevant only insofar as they affect a qualifying relative in a way that goes beyond ordinary consequences of removal; and
such conditions are “generally insufficient in themselves” to amount to the high hardship threshold.

This is crucial to the court’s rejection of Hasan’s Covid-based hardship theory.

F. Use of Police Reports and Criminal Complaints – Carcamo

Hasan challenged the IJ’s use of hearsay-laden criminal complaint materials in evaluating his criminal history. The Second Circuit relies on Carcamo v. U.S. Department of Justice, 498 F.3d 94 (2d Cir. 2007), which held:

police reports and complaints—even if containing hearsay and not part of the formal record of conviction—may be admitted and considered in the discretionary relief context; and
due process does not require the IJ to accept an applicant’s contrary testimony over such documentary evidence.

This precedent largely forecloses Hasan’s due process argument about the evidentiary use of his criminal complaint.

G. Standards for CAT Relief – Nasrallah and Garcia-Aranda

The court’s CAT analysis invokes:

Nasrallah v. Barr, 590 U.S. 573 (2020):
- Holds that even where § 1252(a)(2) limits review of the final removal order, federal courts retain jurisdiction to review factual challenges to CAT determinations.
- CAT orders are not final orders of removal; thus, the court may review the agency’s factual findings for substantial evidence.
Garcia-Aranda v. Garland, 53 F.4th 752 (2d Cir. 2022):
- Restates that a CAT applicant must show it is “more likely than not” that he will be tortured by, or with the acquiescence of, government officials.
- Reinforces the regulation-based framework in 8 C.F.R. §§ 1208.16(c)(2), (4), and 1208.18(a)(1).

H. Issue Exhaustion and Abandonment – Ud Din, Steevenez, Debique

The court’s refusal to entertain certain arguments is grounded in:

Ud Din v. Garland, 72 F.4th 411 (2d Cir. 2023): Establishes that issue exhaustion before the BIA is a mandatory requirement. Arguments not raised to the BIA are not preserved for judicial review.
Steevenez v. Gonzales, 476 F.3d 114 (2d Cir. 2007): Clarifies that to preserve an issue, a petitioner must raise it before the BIA “with specificity.”
Debique v. Garland, 58 F.4th 676 (2d Cir. 2023): Holds that claims are deemed abandoned on appeal where they are not adequately argued in the petitioner’s brief; mere reference is insufficient.

These authorities justify the court’s decision:

not to consider the “law of the case” CAT argument (unexhausted before the BIA); and
to treat key CAT arguments as abandoned because Hasan did not meaningfully contest the dispositive factual findings.

V. The Court’s Legal Reasoning

A. Denial of § 212(h) Waiver and Motion to Remand

1. Jurisdictional Limits: No Review of Factual and Discretionary Issues

The court begins by recognizing that Hasan is subject to removal for an aggravated felony and that § 1252(a)(2)(B) and (C), as interpreted by Patel, sharply limit judicial review of:

both the eligibility determination under § 212(h) (e.g., whether “extreme hardship” was proven); and
the discretionary denial of relief, even if eligibility were assumed.

Under § 1252(a)(2)(D), the court may still review:

colorable constitutional claims (for example, genuine claims of due process violation, denial of a full and fair hearing), and
colorable questions of law (e.g., misinterpretation of statutes, regulations, or application of erroneous legal standards).

Hasan’s hardship arguments, however, essentially dispute:

how the IJ and BIA weighed the evidence (e.g., seriousness of Covid in Pakistan, societal hostility toward Shias, medical care quality); and
whether that evidence sufficed to meet the “extreme hardship” standard.

These are fundamentally factual and discretionary disagreements, not legal ones. Accordingly, the court holds it lacks jurisdiction to review them and dismisses this part of the petition.

2. Motion to Remand and Covid-Related Evidence

Hasan sought to introduce new evidence of:

his own recent treatment for Covid-related pneumonia; and
online accusations that Shias had introduced Covid to Pakistan.

The BIA denied remand, finding that the new evidence would not likely change the outcome. The Second Circuit concludes that this ruling did not involve legal error:

Under Li Yong Cao, the BIA may deny remand where the movant fails to show the new evidence would likely affect the result.
Monreal-Aguinaga suggests that adverse foreign conditions (including a lower standard of medical care or societal hostility) generally do not, by themselves, suffice to show the level of hardship required—here, “extreme hardship” to U.S. citizen or LPR relatives.

Crucially, the hardship focus under § 212(h) is on qualifying relatives in the United States, not the applicant’s own hardship abroad. The court accepts the BIA’s reasoning that:

a lower standard of medical care in Pakistan, or hostility toward Shias there, does not inherently demonstrate “extreme hardship” to Hasan’s U.S. spouse and children beyond what ordinarily accompanies a family member’s removal.

Because the BIA applied the correct legal standards and merely concluded that the new evidence was not outcome-determinative, the court finds no colorable legal issue and thus no jurisdiction.

3. Due Process Challenge to Use of Criminal Complaint

Hasan also argued that his due process rights were violated because:

the IJ relied on hearsay in his criminal complaint to conclude that his criminal history was “troubling” and outweighed his positive equities; and
he was allegedly deprived of an adequate opportunity to explain his conduct.

The court rejects both contentions as not “colorable” constitutional claims:

Admissibility and use of hearsay evidence:
Relying on Carcamo, the court reaffirms that:
- police reports and criminal complaints—even if hearsay and not formal conviction records—are admissible and may be relied upon when adjudicating discretionary relief; and
- there is no due process requirement that an IJ credit the applicant’s testimony over such records.
Thus, the IJ’s reliance on the criminal complaint to assess Hasan’s negative equities is legally permissible.
Opportunity to respond:
The court notes that Hasan had an “ample opportunity” at his hearing to:
- explain his conduct; and
- contradict statements in the criminal complaint.
Due process in immigration hearings generally requires:
- notice of the evidence; and
- a meaningful opportunity to be heard and to rebut it.
The court finds both elements satisfied here.

Because Hasan’s due process arguments are foreclosed by existing precedent and lack substance, they do not open the narrow jurisdictional door provided by § 1252(a)(2)(D).

B. Denial of CAT Protection

1. Applicable Standard and Agency Findings

Unlike the § 212(h) waiver, the CAT claim is reviewable under Nasrallah. The court applies the substantial evidence standard to the agency’s factual findings.

Under the governing regulations and cases:

Hasan must show it is “more likely than not” that he will be tortured in Pakistan, and
torture must be inflicted by, at the instigation of, or with the consent or acquiescence of a public official or person acting in an official capacity. 8 C.F.R. § 1208.18(a)(1).

The agency (IJ and BIA) denied CAT relief because:

Hasan’s last targeting by a Sunni organization occurred in 2002, over two decades before the decision;
He could avoid harm by relocating within Pakistan to a different area; and
Country conditions evidence showed that violence against Shia Muslims, while present, was not so widespread as to make torture more likely than not in his case.
Covid-related humanitarian crises and government administrative challenges did not demonstrate a likelihood of torture.

2. Hasan’s Covid-Based Arguments and Abandonment

On appeal, Hasan argued that the BIA failed to appreciate the “unforeseen and overwhelming administrative challenges” linked to Covid in Pakistan. His new evidence included:

sealing of communities with higher infection rates;
furloughs of some government employees; and
online harassment targeting Shias.

The court notes that Hasan:

did not clearly explain how these developments make it more likely than not that he personally would be tortured by, or with the acquiescence of, officials; and
did not meaningfully challenge key agency findings:
- the long lapse of time since his last targeting in 2002;
- his ability to relocate safely; and
- the limited scope of anti-Shia violence based on the record.

Relying on Debique, the court holds that by failing to adequately present arguments against these dispositive factual determinations, Hasan effectively abandoned his challenge to the CAT denial. The court therefore declines to overturn the agency’s decision, noting that the record does not compel a contrary conclusion.

3. Law-of-the-Case Argument and Issue Exhaustion

Hasan also suggested that under the law of the case doctrine, the agency should have granted CAT relief because he had previously been found eligible for asylum. He argued that the prior asylum finding should essentially control the CAT analysis.

The court does not reach the merits of this theory. Instead, it holds:

Hasan failed to raise this specific law-of-the-case argument to the BIA; and
under Ud Din and Steevenez, failure to raise an issue “with specificity” to the BIA renders the argument unexhausted and thus not properly before the court.

This portion of the decision underscores the rigor with which the Second Circuit enforces exhaustion requirements: even potentially powerful legal arguments (like law-of-the-case) are forfeited if not presented at the administrative level.

VI. Complex Concepts Simplified

A. “Colorable Constitutional Claim or Question of Law”

When statutes like § 1252(a)(2)(B) and (C) strip courts of jurisdiction to review discretionary decisions or certain criminal removal orders, § 1252(a)(2)(D) restores review only for:

Constitutional claims (e.g., due process violations), and
Questions of law (e.g., legal interpretation errors).

But not every mention of “due process” or “law” suffices; the claim must be colorable:

It cannot be wholly insubstantial, frivolous, or simply a repackaging of factual disagreement as a legal complaint.
For example, “the IJ weighed the hardship evidence incorrectly” is not a legal claim; it is a factual/discretionary disagreement.

B. § 212(h) Waiver of Inadmissibility

INA § 212(h), 8 U.S.C. § 1182(h), allows the Attorney General to waive certain criminal or immigration violations if:

the applicant is the spouse, parent, son, or daughter of a U.S. citizen or lawful permanent resident; and
the applicant can show that denying admission would result in extreme hardship to the qualifying relative(s).

However:

Even if the applicant proves extreme hardship, the relief remains discretionary.
The agency may deny relief based on criminal history or other negative factors, after weighing all equities.

C. “Extreme Hardship” vs. Ordinary Consequences of Removal

“Extreme hardship” is a demanding standard. Ordinary emotional and economic harm to U.S. relatives caused by a family member’s removal (e.g., separation, financial impact) normally does not suffice. Factors like:

serious health conditions of a qualifying relative;
unusual educational, psychological, or care needs; or
very dangerous or unstable country conditions affecting the relative

can sometimes push a case into “extreme” territory, but the bar is intentionally high. And, per Monreal, generalized poor conditions or lower medical standards abroad, without more, are usually insufficient.

D. CAT Deferral of Removal

CAT protection is separate from asylum or withholding and has its own standard:

The applicant must show it is more likely than not (over 50% likelihood) that he will be tortured if removed.
“Torture” is a very severe form of harm, intentionally inflicted, and either carried out by or with the acquiescence of a public official.
Even if past persecution or serious discrimination exists, it does not automatically equal torture.

Importantly, relocation within the home country may defeat a CAT claim if the applicant can reasonably avoid torture by moving to another area.

E. Law of the Case Doctrine

The “law of the case” doctrine generally provides that once an issue is decided in a case, that decision should ordinarily govern later stages of the same case. In the immigration context, a petitioner might argue:

that a prior grant of asylum (which requires a well-founded fear of persecution) implies a certain recognition of risk that should inform or constrain later decisions on CAT or other forms of relief.

However:

Law of the case is not absolute; changed circumstances or legal developments can justify departures.
Crucially, the argument must be raised before the BIA to be preserved for judicial review.

F. Issue Exhaustion and Abandonment

Issue exhaustion means:

The petitioner must first raise a given issue to the BIA before asking a federal court to review it.
Arguments raised for the first time in the court of appeals are usually dismissed as unexhausted.

Abandonment on appeal occurs when:

the petitioner fails to adequately brief an issue in the court of appeals;
courts will not do the litigant’s work for them by searching the record or inventing arguments.

In Hasan, both doctrines limit what the Second Circuit is willing to consider.

G. “Substantial Evidence” Review

Under substantial evidence review:

The court must uphold the agency’s factual findings if they are supported by “reasonable, substantial, and probative evidence” on the record as a whole.
The court may not reverse just because it would have decided the case differently.
Reversal is warranted only if the evidence would compel any reasonable adjudicator to reach the opposite conclusion.

This is a highly deferential standard and is applied to CAT findings under Nasrallah.

VII. Impact and Practical Implications

A. Reinforcing the Post-Patel Jurisdictional Landscape

Although nonprecedential, Hasan v. Bondi illustrates how the Second Circuit is applying Patel in practice:

Challenges to how hardship evidence is weighed or whether it meets a statutory threshold are treated as unreviewable factual/discretionary issues in § 212(h) and similar contexts.
Only genuinely legal or constitutional defects—such as misapplication of the hardship standard or denial of a fair hearing—remain reviewable.

For practitioners, this means that:

They must frame appellate arguments in truly legal terms (e.g., “the IJ applied an incorrect legal standard for hardship”) rather than simply contesting the agency’s view of the facts.
Efforts to re-characterize factual disagreements as due process violations will likely fail unless they identify actual procedural unfairness.

B. Evidentiary Use of Criminal Complaints in Discretionary Relief

The decision reinforces that, under Carcamo:

police reports and criminal complaints—even those not culminating in conviction—are permissible evidence in evaluating discretionary relief; and
due process is not violated merely because such documents contain hearsay.

Practically, this underscores the importance of:

preparing clients thoroughly to address and explain adverse allegations contained in police reports and complaints; and
submitting countervailing evidence (e.g., expert testimony, affidavits, rehabilitation evidence) rather than relying on generalized objections to hearsay.

C. Covid and Hardship/CAT Claims: Need for Specific, Causal Links

Hasan’s attempt to use Covid-related developments highlights a broader lesson:

Generalized evidence of pandemic-related hardship, strained healthcare systems, or public hostility does not automatically translate into “extreme hardship” for § 212(h) purposes.
Nor does it necessarily show a likelihood of torture under CAT.

Practitioners must:

articulate specific causal pathways showing how Covid-related conditions would concretely and disproportionately impact qualifying relatives (for hardship) or make the applicant more likely than not to be tortured (for CAT); and
tie country conditions tightly to the individual applicant’s circumstances.

D. CAT Jurisprudence Post-Nasrallah: Rights with Responsibilities

Nasrallah expanded judicial review over CAT claims, but Hasan shows that:

the expanded jurisdiction does not relax the applicant’s burden to fully brief and support the factual challenge;
failure to contest key adverse findings—such as the feasibility of relocation or the degree of targeted violence—can result in abandonment of the CAT claim.

In practice:

CAT appeals should directly attack each adverse factual finding, explaining why the record compels an opposite conclusion;
boilerplate assertions about changed conditions or administrative challenges (e.g., due to Covid) are insufficient without concrete links to torture risk.

E. The Centrality of Issue Exhaustion and Legal Strategy Before the BIA

The court’s refusal to entertain Hasan’s law-of-the-case theory underscores a critical strategic reality:

All potentially significant legal arguments, especially doctrinal ones like law of the case or claims based on prior grants of relief, must be raised clearly and specifically before the BIA.

Otherwise:

they will be deemed unexhausted and will not be considered on petition for review, no matter how compelling they might seem.

Effective appellate strategy in immigration cases therefore requires:

treating the BIA appeal as the central forum for developing and preserving legal theories; and
drafting BIA briefs with one eye on potential future federal court litigation.

VIII. Conclusion

Hasan v. Bondi is a nonprecedential summary order, but it sharply illustrates the contours of modern immigration appellate practice under the INA’s jurisdiction-stripping provisions and key Supreme Court decisions like Patel and Nasrallah.

On the § 212(h) waiver side, the decision underscores that:

disputes over hardship evidence and discretionary balancing are generally unreviewable for aggravated felons; and
only genuine legal or constitutional defects—such as misapplication of the governing hardship standard or denial of a fair hearing—can open the narrow path for judicial review.

On the CAT side, it confirms that:

factual findings are reviewable for substantial evidence;
but the applicant must fully brief and substantively contest those findings, or they will be deemed abandoned.

The case also reaffirms the permissible use of police reports and criminal complaints in discretionary adjudications and emphasizes the critical importance of:

issue exhaustion before the BIA; and
careful, evidence-based linkage between country conditions (including Covid-related developments) and the specific legal elements of hardship and torture.

Taken together, Hasan is a cautionary illustration: in the post-Patel era, successful immigration appeals require not only strong underlying facts but also precise legal framing, robust evidentiary development, and meticulous preservation of issues at every stage of the administrative process.

Disclaimer: This commentary is for informational and educational purposes only and does not constitute legal advice. Individuals facing immigration or removal proceedings should consult a qualified attorney regarding their specific circumstances.