Second Circuit Requires BIA “But-For” Merits Determinations When the Material-Support Bar Blocks Asylum/Withholding, Preserving Access to DHS Waivers

1. Introduction

Sufiyan v. Bondi (2d Cir. Mar. 12, 2026) sits at the intersection of (i) the INA’s sweeping “material support” terrorism bar and (ii) Congress’s parallel decision to authorize DHS, in limited circumstances, to exempt certain applicants from that bar. Mohamed Irshan Mohamed Sufiyan, a Sri Lankan national, sought asylum, statutory withholding of removal under the INA, and protection under the Convention Against Torture (“CAT”).

The key factual predicate for the terrorism bar was Sufiyan’s compelled translation for members of the Liberation Tigers of Tamil Eelam (“LTTE”), a designated foreign terrorist organization. The agency (IJ and BIA) concluded that this translation constituted “material support,” rendering Sufiyan ineligible for asylum and withholding (and CAT withholding). The BIA then declined to reach the underlying merits of asylum and statutory withholding, treating the bar as “dispositive.”

That procedural choice created the central appellate issue: under DHS’s own waiver/exemption practice, USCIS will not consider a material-support exemption unless the applicant has already been found otherwise eligible for relief (i.e., eligible “but for” the bar). By refusing to decide merits, the BIA effectively blocked Sufiyan from even seeking the congressionally authorized DHS exemption.

Parties and posture

• Petitioner: Mohamed Irshan Mohamed Sufiyan
• Respondent: Attorney General Pamela Bondi (substituted under Fed. R. App. P. 43(c)(2))
• Agency decisions: IJ denied all relief; BIA affirmed, relying on the material support bar for asylum/statutory withholding/CAT withholding and denying CAT deferral on the merits.

Issues presented

1. Whether substantial evidence supported denial of CAT deferral (and related CAT protection).
2. Whether the BIA must decide “but-for” eligibility for asylum and statutory withholding when it relies on the material support bar—so the applicant can pursue a DHS/USCIS exemption.
3. Whether the agency must make a duress finding regarding the material support (for purposes of a DHS duress exemption).

2. Summary of the Opinion

The Second Circuit granted the petition in part and remanded, holding that where the BIA denies asylum and statutory withholding solely on the material support bar, it must determine whether the applicant would be eligible for those forms of relief if the bar did not apply—a “but-for” merits determination—because otherwise DHS’s exemption process becomes functionally unavailable, frustrating Congress’s design and conflicting with BIA precedent.

The Court denied the petition as to CAT: substantial evidence supported the agency’s conclusion that Sufiyan did not show it was more likely than not he would be tortured on return to Sri Lanka. The Court also held the agency was not required to make a duress determination regarding the material support, because USCIS evaluates duress for exemption purposes and such a finding is not a prerequisite to requesting the waiver.

Judge Sullivan concurred in part and dissented in part, rejecting the majority’s requirement that the BIA make “but-for” merits determinations and relying on the principle that agencies need not decide unnecessary issues.

3. Analysis

3.1. Precedents Cited

A. Standards of review and scope of judicial review

• Yan Chen v. Gonzales, 417 F.3d 268 (2d Cir. 2005): Cited for the rule that the court reviews the IJ decision as supplemented by the BIA, and considers only grounds actually reached and relied upon. This mattered because the BIA expressly did not reach merits of asylum/statutory withholding, making the “but-for” omission the core reviewable error.
• Yanqin Weng v. Holder, 562 F.3d 510 (2d Cir. 2009): Provided the substantial evidence standard for factual findings and de novo review for legal questions. The CAT denial was reviewed through this lens, while the “but-for” obligation was treated as a legal/structural question.
• Quintanilla-Mejia v. Garland, 3 F.4th 569 (2d Cir. 2021): Emphasized that substantial evidence review does not permit judicial reweighing—supporting the denial of CAT relief where the record did not compel a contrary finding.

B. CAT protection: legal framework and evidentiary considerations

• Savchuck v. Mukasey, 518 F.3d 119 (2d Cir. 2008): Used for the governing CAT standard: the applicant must show it is “more likely than not” he would be tortured.
• Manning v. Barr, 954 F.3d 477 (2d Cir. 2020): Cited for the IJ’s duty to consider all evidence relevant to future torture (including relocation), and to support the reasonableness of weighing safe relocation and unimpeded travel against claimed risk.
• Matter of M-H-Z-, 26 I. & N. Dec. 757 (B.I.A. 2016): Cited for the proposition that the material support bar precludes CAT withholding but not CAT deferral, and (critically) for its guidance on sequencing merits determinations relative to the bar.

C. Material support bar: breadth, lack of implied exceptions, and the waiver “relief valve”

• Ay v. Holder, 743 F.3d 317 (2d Cir. 2014): Cited for the point that the INA defines “engaging in terrorist activity” to include providing material support to terrorist organizations or individuals.
• Hernandez v. Sessions, 884 F.3d 107 (2d Cir. 2018): Central to the court’s description of the bar’s rigidity; cited for the holding that there is no duress exception in the statute, and for concurring concerns about the bar’s harshness absent an effective exemption process.
• Matter of A-C-M-, 27 I. & N. Dec. 303 (B.I.A. 2018): Cited for the proposition that there is no de minimis exception—reinforcing why the waiver mechanism is functionally indispensable.
• Doleck Nepali v. Barr, 828 F. App'x 14 (2d Cir. 2020) (summary order): Reinforced the absence of a de minimis exception.
• Sesay v. Att'y Gen. of the United States, 787 F.3d 215 (3d Cir. 2015): Used to illustrate DHS’s duress waiver/exemption practice.
• Annachamy v. Holder, 733 F.3d 254 (9th Cir. 2013), overruled in part on other grounds by Abdisalan v. Holder, 774 F.3d 517 (9th Cir. 2014): Cited to frame Congress’s balancing of humanitarian obligations and national security and to caution courts against rewriting that balance—yet the majority uses the same “balance” concept to justify enforcing the waiver pathway Congress created.

D. Agency procedure, congressional design, and conflicts among circuits

• FH-T v. Holder, 743 F.3d 1077 (7th Cir. 2014) (Wood, C.J., dissenting from denial of rehearing en banc): Quoted for the idea that where another statutory mechanism depends on a BIA finding, it is for the BIA to ensure procedures allow it to perform its duty. The majority uses this to argue that the executive-branch structure cannot be administered in a way that nullifies Congress’s waiver scheme.
• Costello v. Immigration and Naturalization Service, 376 U.S. 120 (1964): Cited for the principle that courts should hesitate to adopt constructions that “completely nullify” a procedure intrinsic to the legislative scheme.
• Paucar v. Garland, 84 F.4th 71 (2d Cir. 2023): Cited for the rule that the BIA must follow its own precedent— leveraged to treat Matter of M-H-Z- as binding guidance the BIA ignored here.
• Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519 (1978) and INS v. Bagamasbad, 429 U.S. 24 (1976): Featured prominently in Judge Sullivan’s dissent to argue that courts should not impose judge-made procedural requirements and that agencies need not decide issues unnecessary to the outcome. These authorities frame the core majority/dissent divide: structural enforcement of statutory design versus procedural restraint.

3.2. Legal Reasoning

A. The CAT holding: why the denial stood

The court treated CAT deferral as the only CAT form unaffected by the material support bar but emphasized that both CAT withholding and CAT deferral require the same “more likely than not” torture showing. The IJ’s findings that Sufiyan safely relocated within Sri Lanka for years, traveled repeatedly using his own passport, and lacked corroboration and detail about past torture supported the conclusion that the Sri Lankan government was not actively seeking him and that future torture was not shown to be more likely than not.

Importantly, the court did not endorse a categorical rule that credible testimony alone always suffices; it accepted that the IJ could reasonably weigh relocation and travel history against the claimed risk. Under Quintanilla-Mejia v. Garland, the record did not compel a contrary finding.

B. The new procedural/structural rule: BIA must make “but-for” merits findings

The core innovation of the opinion is not about the substantive scope of “material support” (Sufiyan did not dispute it on review). It is about sequencing and completeness of adjudication where Congress paired a broad bar with a discretionary exemption administered by DHS/USCIS.

1) The statutory architecture the court sought to preserve

The court framed the INA as creating an integrated system: (i) a categorical bar (8 U.S.C. §§ 1158(b)(2)(A)(v), 1231(b)(3)(B)(iv), 1182(a)(3)(B)) and (ii) a discretionary exemption process (8 U.S.C. § 1182(d)(3)(B)(i)) requiring inter-agency consultation. In the court’s view, the exemption is a “relief valve” that Congress intended to remain practically reachable for at least some applicants swept up by the bar’s breadth.

2) The regulatory/practice bottleneck that made merits findings outcome-determinative

The majority treated DHS’s described practice as a gating condition: USCIS will consider an exemption only once the removal order is administratively final and only where the applicant has been found otherwise eligible for relief but for the bar. Thus, if the BIA affirms a denial solely on the material support bar and refuses to decide eligibility absent the bar, the applicant cannot even be considered for the exemption Congress authorized.

3) Why Bagamasbad did not control (majority’s view)

The BIA relied on the general maxim that agencies need not decide non-dispositive issues. The majority accepted that principle as a default, but held this context is different because the “non-dispositive” merits findings are dispositive for the operation of the waiver scheme. The court characterized the BIA’s approach as frustrating Congress’s intent and effectively “nullifying” an “intrinsic” statutory procedure, invoking Costello v. Immigration and Naturalization Service.

4) Reliance on BIA’s own precedent: Matter of M-H-Z-

The court gave decisive weight to Matter of M-H-Z-, where the BIA recognized that USCIS requires a prior “otherwise eligible” determination, and thus stated that Immigration Judges should “ordinarily” decide eligibility for the underlying relief first and only then consider the material support bar if necessary. The Second Circuit read M-H-Z- as establishing a default sequencing rule and held the BIA provided no reasoned basis for departing from it—contrary to Paucar v. Garland’s requirement that the BIA follow its precedent.

5) Limits of the holding: no duty to make duress findings

The court drew a sharp line between (i) a “but-for” merits determination (needed to unlock USCIS consideration under existing practice) and (ii) a duress finding (which USCIS evaluates under its delegated discretion and criteria). Because a duress finding is not a precondition to seeking an exemption, the court held the IJ/BIA need not make it.

C. The dissent’s legal theory (and the fault line it exposes)

Judge Sullivan would have applied INS v. Bagamasbad straightforwardly: once the BIA found the material support bar dispositive, it had no duty to decide other eligibility issues. He relied on Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc. to caution against court-imposed procedural mandates and emphasized a Seventh Circuit approach (discussing FH-T v. Holder (7th Cir. 2013)) that refused to require “but-for” findings. He also characterized M-H-Z-’s footnote as permissive, not mandatory.

The majority/dissent split thus tees up a recurring administrative-law question in immigration: when does a “general” procedural maxim yield because the decision structure prevents another congressionally created mechanism from functioning in practice?

3.3. Impact

A. Immediate practical effect in the Second Circuit

• Remand requirement: In cases where the BIA relies on the material support bar to deny asylum or statutory withholding, it must now address whether the applicant would otherwise qualify for those forms of relief absent the bar (at least where, as here, the waiver pathway depends on it).
• Preservation of waiver access: The opinion is designed to ensure applicants have a viable path to request USCIS consideration of an exemption under 8 U.S.C. § 1182(d)(3)(B)(i), rather than having that pathway foreclosed by agency sequencing.

B. Administrative and litigation consequences

• More merits adjudication despite a “dispositive” bar: IJs and the BIA may need to litigate and decide asylum/withholding elements (credibility, nexus, past persecution, future fear, corroboration, etc.) even when the terrorism bar applies, increasing adjudicatory load in affected cases.
• More developed records: Merits decisions will create clearer records for any later USCIS exemption consideration and for judicial review if USCIS denies an exemption (reviewable only in limited ways and in the context of a final order).
• Potential inter-circuit tension: The dissent’s reliance on Seventh Circuit reasoning highlights a likely circuit split (or at least a deepening divergence) on whether courts can require “but-for” findings to preserve access to discretionary waiver processes.

C. Doctrinal significance

The decision is best read as a structural holding: when Congress builds a two-part system (categorical bar + discretionary exemption), agency practices cannot be administered in a way that makes the exemption practically unreachable for lack of a predicate finding. The opinion thereby reframes “issue pretermission” as potentially unlawful where it disables a separate statutory mechanism.

4. Complex Concepts Simplified

Material support bar

A rule in immigration law that can disqualify a person from asylum and withholding if they provided certain forms of support—sometimes very small or coerced— to a designated terrorist organization. Courts and the BIA have treated it as broad and inflexible.

Exemption / waiver under 8 U.S.C. § 1182(d)(3)(B)(i)

A discretionary DHS power (often implemented through USCIS) to excuse the material support bar for certain categories of people (including some who acted under duress). It is not decided by the IJ or BIA.

“But-for” eligibility determination

A finding answering: “Would the person win asylum or statutory withholding if the material support bar did not exist?” The Second Circuit held this finding is necessary because USCIS typically will not consider an exemption unless the applicant is otherwise eligible.

Withholding vs. deferral under CAT

Both require showing it is more likely than not the person would be tortured. But certain bars (including the material support bar) can block CAT withholding; CAT deferral remains available as a narrower protection even when bars apply.

Substantial evidence review

A highly deferential standard: the court upholds agency factfinding unless the record compels the opposite conclusion.

5. Conclusion

Sufiyan v. Bondi establishes (in the Second Circuit) a consequential procedural rule for terrorism-bar cases: the BIA may not treat the material support bar as an all-purpose shortcut that eliminates the need to decide whether an applicant otherwise qualifies for asylum or statutory withholding. When the exemption framework depends on such a predicate finding, the BIA must make the “but-for” merits determination so that the DHS/USCIS exemption process authorized by Congress remains practically available.

At the same time, the court reaffirmed the rigor of substantial-evidence review in CAT cases and declined to require IJ/BIA duress findings, leaving duress determinations to USCIS in the exemption process. The partial concurrence/dissent underscores the likelihood of continued doctrinal conflict over the proper role of courts in policing agency procedure where interlocking statutory and regulatory schemes can otherwise leave congressionally created relief mechanisms functionally out of reach.