Sufiyan v. Blanche: The BIA Must Make “But-For” Merits Findings When the Material Support Bar Is Dispositive and a DHS Waiver Requires “Otherwise Eligible” Status

I. Introduction

In Sufiyan v. Blanche (2d Cir. Mar. 12, 2026, amended May 26, 2026), the Second Circuit reviewed a final order of removal involving Mohamed Irshan Mohamed Sufiyan, a Sri Lankan national, who sought (1) asylum, (2) withholding of removal under the INA, and (3) protection under the Convention Against Torture (“CAT”) via withholding or deferral.

The central procedural problem arose because the Board of Immigration Appeals (“BIA”) treated the material support bar—based on Sufiyan’s coerced translation for the LTTE—as dispositive and therefore declined to decide whether he otherwise met the legal standards for asylum or statutory withholding. Sufiyan argued that, without an “otherwise eligible” merits determination, he could not pursue a discretionary DHS waiver of the material support bar through USCIS, frustrating the statutory scheme.

The Second Circuit’s majority agreed in part: it held that under the existing inter-agency framework, the BIA must decide whether Sufiyan would qualify for asylum or statutory withholding but for the material support bar, so that DHS can meaningfully exercise the waiver authority Congress created. The court nonetheless denied CAT relief on the merits and rejected the demand that the agency make a duress finding as part of removal proceedings.

II. Summary of the Opinion

  • CAT (withholding/deferral): Denied. Substantial evidence supported the IJ/BIA finding that Sufiyan failed to show it was more likely than not he would be tortured upon return to Sri Lanka, particularly given safe internal relocation and repeated travel using his passport.
  • Asylum and statutory withholding under the INA: Petition granted in part. The case was remanded because the BIA erred by refusing to decide whether Sufiyan would be eligible for those forms of relief absent the material support bar, a determination necessary to allow USCIS to consider a waiver under the statutory/regulatory regime.
  • Duress finding: Denied. The IJ/BIA were not required to find whether the material support was provided under duress, because USCIS alone evaluates duress waiver criteria and an IJ/BIA duress finding is not a prerequisite to seeking that waiver.

Disposition: Petition GRANTED in part and REMANDED for “but-for” asylum/statutory-withholding determinations; petition DENIED as to CAT and duress.

III. Analysis

A. Precedents Cited

1. Standards of Review and Appellate Posture

  • Yan Chen v. Gonzales, 417 F.3d 268 (2d Cir. 2005): The court reiterated it reviews the IJ decision “as supplemented by the BIA,” and only on grounds the BIA actually relied upon.
  • Yanqin Weng v. Holder, 562 F.3d 510 (2d Cir. 2009): Anchored the dual review framework—substantial evidence for factfinding and de novo review for law and law-to-fact applications (as the panel framed it).
  • Quintanilla-Mejia v. Garland, 3 F.4th 569 (2d Cir. 2021): Reinforced that substantial evidence review forbids judicial “reweighing” of evidence; the court asks only whether the record compels a contrary finding.

2. CAT Legal Framework

  • Savchuck v. Mukasey, 518 F.3d 119 (2d Cir. 2008): Stated CAT protection requires showing that torture is “more likely than not.”
  • Manning v. Barr, 954 F.3d 477 (2d Cir. 2020): Cited for the IJ’s duty to consider all evidence relevant to future torture (past torture, relocation, country conditions).
  • Matter of M-H-Z-, 26 I. & N. Dec. 757 (B.I.A. 2016): Used both for the CAT distinction (material support bars CAT withholding but not CAT deferral) and—more importantly—for the “ordinary” sequencing principle that IJs should determine “otherwise eligible” status first so a waiver may be pursued.

3. Material Support Bar and No Duress/De Minimis Exceptions in Immigration Court

  • Ay v. Holder, 743 F.3d 317 (2d Cir. 2014): Cited for the proposition that “engaging in a terrorist activity” includes providing “material support.”
  • Hernandez v. Sessions, 884 F.3d 107 (2d Cir. 2018): Confirmed there is no duress exception to the material support bar in immigration adjudication, while also highlighting the waiver process as the safety valve (and including a concurrence raising international-law concerns if the waiver mechanism is illusory).
  • Matter of A-C-M-, 27 I. & N. Dec. 303 (B.I.A. 2018), and Doleck Nepali v. Barr, 828 F. App’x 14 (2d Cir. 2020) (summary order): Cited for the principle that there is no de minimis exception—small or indirect assistance can still be “material support.”

4. The Waiver/Exemption Framework and Inter-Agency Design

  • Exercise of Authority Under Sec. 212(d)(3)(B)(i) of the Immigration and Nationality Act, 72 Fed. Reg. 26138-02 (May 8, 2007) (“D.H.S. Exercise of Authority”): Provided the regulatory implementation of DHS’s exemption authority, including a duress exemption and the “otherwise eligible” condition.
  • Sesay v. Att’y Gen. of the United States, 787 F.3d 215 (3d Cir. 2015): Cited as an example of DHS’s announced approach to duress waivers and the factors considered.
  • 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): Used for the general idea that Congress chose a method to balance humanitarian commitments with national security.

5. The “Must Decide What Is Necessary” Debate: Majority vs. Dissent

  • INS v. Bagamasbad, 429 U.S. 24 (1976): The dissent’s centerpiece—agencies need not decide issues unnecessary to the result.
  • FH-T v. Holder, 723 F.3d 833 (7th Cir. 2013): The dissent relied on the Seventh Circuit’s refusal to require BIA “but-for” merits adjudication in material-support cases; the majority distinguished that view and leaned on the practical nullification of Congress’s scheme.
  • FH-T v. Holder, 743 F.3d 1077 (7th Cir. 2014) (Wood, C.J., dissenting from denial of rehearing en banc): The majority cited this as persuasive support for the proposition that agencies must adopt procedures ensuring statutory schemes function where one statute’s operation depends on another agency’s findings.
  • Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519 (1978): Used by the dissent to resist “judge-made” procedural mandates for agencies absent compelling circumstances.
  • Costello v. Immigration and Naturalization Service, 376 U.S. 120 (1964): Majority’s analogy—courts should hesitate before adopting constructions that nullify an “intrinsic” statutory procedure for an entire class of noncitizens.
  • Paucar v. Garland, 84 F.4th 71 (2d Cir. 2023): Majority cited for the requirement that the BIA follow its own precedent; dissent emphasized limits on using nonprecedential BIA decisions.
  • Hensley v. Eckerhart, 461 U.S. 424 (1983), and Bell v. Wolfish, 441 U.S. 520 (1979): Majority cited to interpret “ordinarily” as a default rule with bounded exceptions, not free-floating discretion.
  • United States v. Maria, 186 F.3d 65 (2d Cir. 1999): Dissent cited for “should” being recommendatory rather than mandatory.
  • Whitman v. Am. Trucking Ass’ns, 531 U.S. 457 (2001): Dissent invoked the “elephants in mouseholes” canon to argue that a binding procedural obligation would not be buried in a footnote in Matter of M-H-Z-.
  • Ajdin v. Bureau of Citizenship & Immigr. Servs., 437 F.3d 261 (2d Cir. 2006): Dissent cited to minimize the significance of unpublished BIA decisions.
  • In re S-K-, 23 I. & N. Dec. 936 (B.I.A. 2006), overruled on other grounds by Matter of Negusie, 28 I. & N. Dec. 120 (U.S. Att’y Gen. 2020): Dissent cited for the proposition that immigration judges/BIA lack authority over exemptions.

B. Legal Reasoning

1. CAT: Why the Court Affirmed Denial of Withholding/Deferral

The court treated the CAT issue as straightforward application of the “more likely than not” torture standard. Even accepting that credible testimony might not require corroboration in all settings, the panel held the IJ permissibly relied on:

  • Internal relocation: Sufiyan lived in Maskeliya for about 3.5 years without incident after detention.
  • International travel history: multiple exits and entries using his own passport without confrontation.
  • Returned-asylum-seeker evidence: the IJ reasonably found Sufiyan not similarly situated and noted confidentiality of asylum proceedings.

Because both CAT withholding and CAT deferral share the same probability-of-torture standard, the panel treated the affirmed likelihood finding as dispositive of both.

2. The New Procedural Rule: “But-For” Adjudication Where the Material Support Bar Blocks Access to the Waiver Path

The majority’s core move is structural: it viewed the material support bar and the statutory exemption process as “integral parts of a single whole.” In its account, Congress created (i) a broad categorical bar and (ii) a discretionary “relief valve” (waiver/exemption) administered by DHS, “after consultation” with the Attorney General.

The problem, as the court framed it, is that USCIS will not consider an exemption unless there is an administratively final order of removal and a determination that the applicant is “otherwise eligible” for relief but for the bar. Thus, if the BIA pretermits merits adjudication whenever the bar applies, applicants are trapped in a catch-22: they cannot obtain the very predicate finding needed to ask USCIS for the waiver Congress authorized.

The majority held that, under the regulatory reality as “currently constituted,” the BIA must decide whether the applicant would qualify for asylum or statutory withholding if the bar did not apply—because otherwise executive practice “effectively nullif[ies] the framework Congress established.”

3. Why the Majority Treated Matter of M-H-Z- as Binding Enough to Require Remand

The majority treated Matter of M-H-Z- as both (i) recognition of USCIS’s “otherwise eligible” prerequisite and (ii) an instruction about sequencing: IJs should “ordinarily” decide eligibility first; “only if” the applicant is otherwise eligible should the material support bar be addressed. The panel read “ordinarily” as a default rule with limited exceptions and faulted the BIA for providing no reasoned basis to depart.

The majority also invoked Paucar v. Garland for the proposition that the BIA must follow its own precedent, converting what could be seen as internal guidance into a remand-worthy legal error when ignored without explanation.

4. Why the Court Refused to Require an IJ/BIA Duress Finding

The majority distinguished between (a) a “but-for” merits finding, which USCIS requires as a gateway, and (b) a duress finding, which USCIS itself evaluates under delegated discretion using criteria set out in D.H.S. Exercise of Authority. Because an IJ/BIA duress finding is not a prerequisite to seeking the waiver, the court declined to force the agency to make it.

5. The Dissent’s Competing Principle: Don’t Force the BIA to Decide Non-Dispositive Issues

Judge Sullivan grounded his dissent in INS v. Bagamasbad and administrative-law restraint under Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc.. In his view:

  • The BIA properly stopped once the material support bar resolved eligibility.
  • Any “catch-22” stems from USCIS resource-allocation choices, which (he argued) cannot create a legal duty for a different agency.
  • The footnote in Matter of M-H-Z- used permissive language (“should ordinarily”), insufficient to impose a binding procedural mandate.

C. Impact

1. Practical Consequence: The Second Circuit Creates a “Functional Access” Requirement to the DHS Waiver Track

The decision’s most significant effect is operational: in the Second Circuit, when the BIA relies on the material support bar to deny asylum or statutory withholding, it generally must still determine whether the applicant would qualify but for the bar—at least where that determination is necessary for USCIS to consider an exemption under the established DHS process described in the opinion.

2. Doctrinal Consequence: A Structural, Scheme-Protective Approach

The majority’s reasoning is less about the individual equities and more about preventing an inter-agency procedural configuration from rendering statutory relief illusory. Its reliance on the Constitution’s “Take Care” principle and on Costello v. Immigration and Naturalization Service-style anti-nullification logic signals a willingness to scrutinize the combined effect of multiple agencies’ practices on a congressionally created remedy.

3. Litigation Consequence: More Remands; Higher Value of Merits Records Even When Bar Applies

If read broadly, Sufiyan incentivizes full development of asylum/withholding merits before the IJ even in cases likely to trigger the terrorism-related bars, because merits findings may now be required to preserve access to the DHS waiver process.

4. Limits: CAT and Duress Remain Constrained

The ruling does not loosen the CAT standard and does not create a duress exception to the bar in immigration court. It preserves the sharp divide: immigration courts decide eligibility (and the bar); USCIS decides waiver and duress exemption criteria.

IV. Complex Concepts Simplified

  • Material support bar: A rule that makes a noncitizen ineligible for certain immigration relief if they provided “material support” to a terrorist organization. Courts and the BIA have interpreted this broadly—covering even coerced or small assistance in many circumstances.
  • “But-for” eligibility determination: A finding that the person would qualify for asylum/withholding if the material support bar did not exist. It does not grant relief; it answers whether the bar is the only remaining obstacle.
  • USCIS waiver/exemption: A discretionary DHS decision that can excuse the material support bar for certain categories (including duress situations), but DHS requires the person to be otherwise eligible for the underlying relief.
  • CAT withholding vs. CAT deferral: Both require showing it is “more likely than not” the person will be tortured if removed. Withholding is unavailable if certain bars apply (including material support), while deferral can still be available—but only if the torture likelihood is proven.
  • Substantial evidence review: A deferential standard. The court does not decide whether it would have ruled differently; it asks whether the agency’s factual conclusions are reasonably supported by the record and not compelled to be otherwise.
  • Government “acquiescence” in CAT: Torture must be inflicted by, or with consent/approval/acquiescence (including willful blindness) of officials.
  • “Pretermitted” / “dispositive”: The agency treats an issue as resolving the case, so it declines to decide other issues. Sufiyan holds this approach can be improper when it blocks access to a statutory waiver pathway that depends on a merits finding.

V. Conclusion

Sufiyan v. Blanche establishes a consequential Second Circuit rule: when the BIA denies asylum or statutory withholding solely on the material support bar, and when DHS’s waiver process requires a finding that the applicant is “otherwise eligible,” the BIA must make the “but-for” merits determination rather than pretermitting the underlying claims. The decision preserves the strictness of CAT’s “more likely than not” standard and confirms that duress determinations for waiver purposes belong to USCIS, not immigration courts. In the broader legal landscape, the case stands out for insisting that inter-agency procedure must not operate to nullify a congressionally provided relief mechanism.