The Sixth Circuit reversed the BIA's discretionary denial of asylum because it was inconsistent with the Board's precedent in Matter of Pula. The BIA denied asylum as a matter of discretion solely because the applicant had used a stolen passport to enter the country, but Pula states that asylum may not be denied as a matter of discretion based solely on the applicant's circumvention of proper immigration procedures. In addition, the BIA acknowledged that it is more likely than not that the petitioner would face harm due to his religion if returned to Syria. According to its own precedent, this should “outweigh all but the most egregious adverse factors.” The irregular entry cannot be deemed such an egregious adverse factor. Thus, the denial of asylum on discretionary grounds was also inconsistent with this BIA precedent.
With respect to the waiver, the Court found that the BIA applied the wrong standard of review to the IJ's factual findings, engaging in a de novo review instead of a clearly erroneous standard.
The Court found the petitioner statutorily eligible for the waiver, too. The Government argued that because the petitioner was inadmissible at the time of his admission as a nonimmigrant as well as at the time of his adjustment of status. The waiver could cure his inadmissibility at the time of his adjustment only. However, the language of the waiver indicates that "a petitioner who is eligible for a waiver of removal is 'also' eligible for a 'waive[r] [of] removal based on the grounds of inadmissibility directly resulting from [the relevant] fraud or misrepresentation.' "The provision thus contemplates circumstances where an already admitted alien seeks to cure a prior misrepresentation."
The full text of Hussam F. v. Sessions can be found here: