Introduction

The case of Dijana Kilic v. William P. Barr, Attorney General (965 F.3d 469) addressed critical issues surrounding deportation relief under the Immigration and Nationality Act (INA). Dijana Kilic, a lawful permanent resident of the United States from Bosnia and Herzegovina, faced deportation following a Michigan conviction for conspiracy to commit armed robbery. Kilic sought relief from removal through two avenues: a waiver of inadmissibility under §212(h) of the INA and deferral of removal under the Convention Against Torture (CAT). This comprehensive commentary analyzes the Sixth Circuit Court's decision, examining its implications for future deportation proceedings and immigration law.

Summary of the Judgment

The United States Court of Appeals for the Sixth Circuit reviewed the decision of the Board of Immigration Appeals (BIA), which upheld the denial of Kilic's removal relief requests. The court reaffirmed that Kilic was deportable under INA provisions due to her criminal conviction. Her attempt to secure a §212(h) waiver was denied because she neither voluntarily departed the U.S. nor was eligible to adjust her status. Additionally, her claim under the Convention Against Torture was dismissed as she failed to demonstrate a likelihood of being subjected to torture upon return to Bosnia. The Sixth Circuit upheld the BIA's decision, affirming both the denial of the waiver and the CAT deferral.

Analysis

Precedents Cited

The judgment extensively references established precedents to substantiate its reasoning:

• Gonzalez-De Leon v. Barr: Affirmed that the Board's decision is reviewed as a final agency determination.
• Matter of Rivas: Clarified the necessity for deportable aliens to assimilate to the position of applicants for admission to benefit from §212(h) waivers.
• Nasrallah v. Barr: Determined that §1252(a)(2)(C) does not preclude reviewing CAT claims, expanding the court's jurisdiction in such matters.
• Seepersad v. Sessions, Poveda, CABRAL v. HOLDER, KLEMENTANOVSKY v. GONZALES, and Montano v. Attorney General: These cases collectively support the rational basis for distinctions in immigration law categories and waiver eligibility.
• ALMUHTASEB v. GONZALES and CRUZ-SAMAYOA v. HOLDER: Addressed the standards for evaluating claims under CAT, emphasizing the need for substantial evidence.

Legal Reasoning

The court's legal reasoning can be divided into two primary areas: the waiver of inadmissibility under §212(h) and the deferral of removal under CAT.

Waiver of Inadmissibility (§212(h))

The court distinguished between inadmissibility and deportability, noting that §212(h) waivers apply only to the former. Since Kilic was deportable due to her criminal conviction, the waiver was not applicable unless she could assimilate to the position of an applicant for admission, which she failed to do. The court emphasized that Congress intentionally designed §212(h) to incentivize voluntary departure and to streamline removal proceedings, thus upholding the denial based on established legal standards.

Deferral of Removal under the Convention Against Torture (CAT)

Initially, §1252(a)(2)(C) was interpreted to limit review scope; however, following the Supreme Court's decision in Nasrallah v. Barr, the Sixth Circuit recognized jurisdiction to evaluate CAT claims even in such deportation contexts. Nonetheless, Kilic failed to provide sufficient evidence demonstrating a probable likelihood of torture. The court applied the "highly deferential" substantial evidence test for factual findings and found no compelling evidence that her return to Bosnia would result in torture, thereby upholding the denial of CAT deferral.

Impact

This judgment has several significant implications:

• Clarification of Waiver Eligibility: Reinforces the stringent requirements for §212(h) waivers, emphasizing the need for deportable aliens to adjust their status or voluntarily depart to qualify.
• Expanded Jurisdiction for CAT Claims: Following Nasrallah v. Barr, the decision underscores the judiciary's role in scrutinizing CAT claims even within deportation proceedings previously considered jurisdiction-stripping.
• Precedential Guidance: Serves as a reference for lower courts in evaluating similar claims, particularly regarding the evidentiary standards required for CAT deferrals and waiver applications.
• Rigorous Standard for Torture Claims: Upholds the necessity for concrete, non-speculative evidence when asserting risks of torture, thereby setting a high bar for future applicants.

Complex Concepts Simplified

Inadmissibility vs. Deportability

Inadmissibility refers to criteria that prevent an individual from obtaining a visa or entering the U.S. legally. Conversely, deportability pertains to individuals who are lawfully present in the U.S. but can be removed based on certain grounds, such as criminal convictions.

§212(h) Waiver

This provision allows the Attorney General to waive specific criminal grounds of inadmissibility if the applicant can demonstrate that denial of the waiver would result in extreme hardship to a U.S. citizen or permanent resident family member.

Convention Against Torture (CAT) Deferral of Removal

This protection prevents the removal of individuals to countries where they are likely to face torture. Applicants must provide substantial evidence indicating a high probability of facing severe harm if returned.

Substantial-Evidence Test

A legal standard used to review factual findings by administrative agencies. It requires that the decision be based on evidence that a reasonable mind might accept as adequate to support the conclusion.

Conclusion

The Sixth Circuit's decision in Dijana Kilic v. William P. Barr reinforces the rigorous standards applied to deportation relief under §212(h) and the Convention Against Torture. By upholding the denial of both the waiver and CAT deferral, the court emphasizes the necessity for clear evidence and procedural compliance in immigration relief applications. This ruling delineates the boundaries of admissibility and deportability, ensuring that only those who meet stringent criteria can evade removal. As immigration law continues to evolve, this judgment serves as a pivotal reference point for both practitioners and appellants navigating the complexities of deportation proceedings.