In the United States Court of Appeals For the Seventh Circuit ____________________ No. 20-3318 ILIR OSMANI, Petitioner, v. MERRICK B. GARLAND, Attorney General of the United States, Respondent. ____________________ Petition for Review of an Order of the Board of Immigration Appeals. No. A094-508-303 ____________________ ARGUED SEPTEMBER 23, 2021 — DECIDED JANUARY 24, 2022 ____________________ Before KANNE, WOOD, and ST. EVE, Circuit Judges. ST. EVE, Circuit Judge. In 2019, the Department of Human Services (“DHS”) sought to remove Ilir Osmani, a refugee of the Kosovo War, based on his criminal convictions and crimes of moral turpitude. An Immigration Judge (“IJ”) granted Os- mani’s petition for an adjusted status under 8 U.S.C. § 1159(a) and for waiver under 8 U.S.C. § 1159(c). The Board of Immi- gration Appeals (“BIA”) reversed the IJ’s ruling based on new 2 No. 20-3318 arguments the government, after failing to take any position before the IJ or to provide any notice to Osmani, raised for the first time on appeal and denied Osmani’s motion to remand for additional factfinding on the conditions in Kosovo. We find the BIA legally erred by considering arguments the government did not present to the IJ, put Osmani on no- tice of, or develop any record evidence to support. In denying Osmani’s motion to remand, the BIA also abused its discre- tion by engaging in impermissible factfinding. Accordingly, we grant Osmani’s petition for review and remand to the BIA. I. Background Petitioner Ilir Osmani, a native of the former Yugoslavia, fled the Kosovo War and was admitted to the United States as a refugee on June 25, 1999. Osmani was convicted for posses- sion of illegal narcotics in 2019. On December 23, 2019, shortly after his release from jail on the narcotics conviction, DHS de- tained Osmani and placed him into removal proceedings. The government sought to remove Osmani to Kosovo based on a prior conviction for aggravated felony theft, see 8 U.S.C. § 1227(a)(2)(A)(iii), commission of two or more crimes involv- ing moral turpitude, see 8 U.S.C. § 1227(a)(2)(A)(ii), and his narcotics conviction, see 8 U.S.C. § 1227(a)(2)(B)(i). The Immigration and Nationality Act (“INA”) permits ref- ugees to petition for legal permanent resident status. 8 U.S.C. § 1159. Osmani applied to adjust his status to legal permanent resident under 8 U.S.C. § 1159(a) on April 1, 2020. Aliens con- victed of certain crimes, such as those involving moral turpi- tude or for violating narcotics laws, are ineligible for visas or admission into the United States. 8 U.S.C. §§ 1182(a)(2)(A)(i)(I), (II). Osmani’s prior convictions No. 20-3318 3 rendered him ineligible for adjustment. See id. For refugees seeking an adjusted status, however, the INA empowers the DHS or the Attorney General to waive bases of inadmissibil- ity under §§ 1182(a)(2)(A)(i)(I), (II) “for humanitarian pur- poses, to assure family unity, or when it is otherwise in the public interest.” 8 U.S.C. § 1159(c). Osmani simultaneously sought a waiver of the grounds of inadmissibility under 8 U.S.C. § 1159(c). In support of his applications, Osmani …
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