                                                                                  [PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT            FILED
                              ________________________ U.S. COURT OF APPEALS
                                                                     ELEVENTH CIRCUIT
                                                                        MAY 22, 2012
                                    No. 09-14197
                                                                         JOHN LEY
                              ________________________
                                                                          CLERK

                                Agency No. A078-804-916

GAI MAKIR-MARWIL,


                                                                                   Petitioner,

                                           versus

U.S. ATTORNEY GENERAL,

                                                                                 Respondent.


                              ________________________

                         Petition for Review of a Decision of the
                              Board of Immigration Appeals
                              _________________________

                                       (May 22, 2012)

Before HULL and COX, Circuit Judges, and WALTER,* District Judge.


       *
         The Honorable Donald E. Walter, United States District Judge for the Western District
of Louisiana, sitting by designation.
HULL, Circuit Judge:

      Gai Makir-Marwil, a native and citizen of Sudan, petitions for review of the

Board of Immigration Appeals’ (“BIA”) final order affirming the Immigration

Judge’s (“IJ”) order of removal and denial of Makir-Marwil’s application for a

waiver of inadmissibility under § 209(c) of the Immigration and Nationality Act

(“INA”), 8 U.S.C. § 1159(c). After review and oral argument, we grant the

petition in part, deny the petition in part, and remand for further proceedings as to

Makir-Marwil’s application for a § 209(c) waiver of inadmissibility.

                                I. BACKGROUND

A. Notice to Appear

      In 2000, Makir-Marwil, age 12, was admitted to the United States as a

refugee from Sudan. In 2004, Makir-Marwil applied to adjust his status to lawful

permanent resident, but on October 18, 2005, this application was denied because

Makir-Marwil failed to appear for an interview.

      In 2006, at age 18, Makir-Marwil pled nolo contendere to charges of grand

theft of a go-cart and burglary of a dwelling, in violation of Florida Statutes

§§ 812.014 and 810.02(4), respectively. He was sentenced to 31 months’

imprisonment for these 2006 offenses.

      In 2007, the Department of Homeland Security (“DHS”) issued a notice to

appear (“NTA”), charging that Makir-Marwil was removable on account of his
                                           2
2006 convictions. See INA § 237(a)(2)(A)(i) to (iii), 8 U.S.C. § 1227(a)(2)(A)(i) to

(iii). At a January 8, 2008 master calendar hearing, Makir-Marwil admitted the

factual allegations in the NTA and conceded removability. At that hearing, the IJ

found Makir-Marwil removable.

B. Makir-Marwil’s Applications for Relief

      On May 14, 2008, Makir-Marwil applied to the DHS for a waiver of

inadmissibility. On September 14, 2008, he applied for asylum, withholding of

removal, and temporary deferral of removal pursuant to the United Nations

Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment

or Punishment (“CAT”), 8 C.F.R. § 208.17.

      As explained later, the IJ granted temporary deferral of removal under CAT

but denied Makir-Marwil’s application for asylum and withholding of removal.

This appeal does not involve those issues. Instead, this appeal concerns the IJ’s

denial of Makir-Marwil’s application for a § 209(c) waiver of inadmissibility,

which is needed for him to adjust his status to lawful permanent resident.

C. General Principles for a § 209(c) Waiver of Inadmissibility

      Generally, an alien—like Makir-Marwil—who commits a “crime of moral

turpitude” is inadmissible and therefore may not have his status adjusted to that of

a lawful permanent resident. See INA §§ 212(a)(2)(A)(i)(I), 209(b)(5), 8 U.S.C.

§§ 1182(a)(2)(A)(i)(I), 1159(b)(5). However, under § 209(c) of the INA, the
                                          3
Attorney General has discretion to waive a refugee’s inadmissibility “for

humanitarian purposes, to assure family unity, or when it is otherwise in the public

interest.” INA § 209(c), 8 U.S.C. § 1159(c). Such a waiver of inadmissibility

restores a refugee’s eligibility to receive lawful permanent residency. See INA

§ 209(a)–(b), 8 U.S.C. § 1159(a)–(b).

      The Attorney General has established guidelines for exercising his discretion

whether to grant a § 209(c) waiver of inadmissibility to a refugee convicted of a

crime involving moral turpitude. In re Jean, 23 I. & N. Dec. 373 (A.G. 2002)

(reversing the BIA’s grant of a § 209(c) waiver of inadmissibility to a woman

convicted of second-degree manslaughter). In Jean, the Attorney General

explained that the evaluation of a § 209(c) waiver application cannot focus solely

on family hardship, “but must consider the nature of the criminal offense that

rendered an alien inadmissible in the first place.” Id. at 383. These considerations

counsel against granting a waiver to a refugee convicted of a serious criminal

offense. Id. Nevertheless, the Attorney General’s guidelines in Jean provide that,

even if a refugee is convicted of a serious offense and determined to be a “violent

or dangerous individual[],” a § 209(c) waiver may still be granted. Id. In such

cases, however, the refugee must identify “extraordinary circumstances, such as

those involving national security or foreign policy considerations, or cases in

which an alien clearly demonstrates that the denial of status adjustment would
                                          4
result in exceptional and extremely unusual hardship.” Id. (emphasis added).

      In sum, in § 209(c) waiver cases, the first step is to determine if the refugee

is a “violent or dangerous individual.” If the refugee is not “violent or dangerous,”

the general statutory standard for a § 209(c) waiver applies, and the refugee must

show that the waiver would serve humanitarian purposes, would assure family

unity, or otherwise would be in the public interest. See INA § 209(c), 8 U.S.C.

§ 1159(c). But a refugee who is “violent or dangerous” must satisfy both the

statutory standard and the heightened, “extraordinary circumstances” standard

outlined in Jean. To show extraordinary circumstances, the refugee can establish

that national security or foreign policy considerations warrant the waiver or that

denial of the waiver would result in “exceptional and extremely unusual hardship”

to the refugee.

D. DHS Denial of Waiver of Inadmissibility

      Here, Makir-Marwil applied for a waiver of inadmissibility on all three

grounds listed in § 209(c): for humanitarian reasons, to assure family unity, and

because a waiver would be in the public interest. In an addendum to his

application, Makir-Marwil stated that in Sudan he endured “conflict and genocide

from a very young age.” He claimed that when he was attending school in

Khartoum, an uncle warned his family that the Muslim militia intended to recruit

Makir-Marwil as a child soldier. His family decided to flee Sudan, but before they
                                          5
could escape, his father disappeared, never to be heard from again. Makir-Marwil

also noted that his mother, step-father, and grandmother are legal permanent

residents and that his step-father joined the U.S. Army in 2008. Makir-Marwil

stated that his step-father has been away since joining the Army and has been

separated from his daughters, Makir-Marwil’s sisters. Makir-Marwil stated that he

had planned to join the U.S. Army before his “legal troubles began.” Additionally,

Makir-Marwil noted that the “conflict and genocide in Sudan is ongoing. There is

a severe humanitarian crisis in Sudan and the violence is immense.”

       The record contains the State Department’s 2007 Country Report on Sudan.1

The Country Report states that the government, government-aligned militias, and

tribal factions “razed numerous villages, committed acts of torture, and perpetrated

violence against women.” The Country Report also indicates that the Sudanese

government’s “human rights record remained poor” and identifies serious abuses,

including: “extrajudicial and other unlawful killings by government forces and

other government-aligned groups”; “torture, beatings, rape, and other cruel,

inhumane treatment or punishment by security forces”; “arbitrary arrest and

detention, including incommunicado detention of suspected government

opponents”; and “forced military conscription of underage men.” In addition, the



       1
        The State Department’s 2007 Country Report is an attachment to Makir-Marwil’s
application for asylum and withholding of removal.
                                              6
government “continued to place restrictions on non-Muslims, non-Arab Muslims,

and Muslims from tribes or sects not affiliated with the ruling party.” The Country

Report notes that the ruling party “originally came to power with a goal of

Islamization, treated Islam as the state religion,” and “restricted Christian

activities.”

       On September 19, 2008, the DHS denied Makir-Marwil’s application for a

discretionary waiver of inadmissability.

E. IJ Hearing and Decision

       At a January 2009 hearing, the IJ considered Makir-Marwil’s waiver

application de novo and considered Makir-Marwil’s request for asylum,

withholding of removal, and temporary deferral of removal under CAT. Makir-

Marwil and his mother, Awaud Akanju, testified at the hearing. In a written

decision, the IJ denied Makir-Marwil’s application asylum, withholding of

removal, and for a waiver of inadmissibility but, as noted earlier, granted a

temporary deferral of removal under CAT.2

       As to Makir-Marwil’s criminal convictions, the IJ found that Makir-Marwil

       2
        In denying Makir-Marwil’s application for asylum and withholding of removal, the IJ
concluded that Makir-Marwil’s 2006 burglary conviction was an “aggravated felony” punishable
by a term of at least one year’s imprisonment and therefore was a “particularly serious crime”
rendering Makir-Marwil ineligible for asylum. See INA § 101(a)(43)(G), 8 U.S.C.
§ 1101(a)(43)(G); INA § 208(b)(2)(B)(ii), 8 U.S.C. § 1158(b)(2)(B)(ii). Makir-Marwil’s 2006
burglary also disqualified him from withholding of removal or permanent CAT relief. See INA
§ 243(b)(3)(B)(ii), 8 U.S.C. § 1231(b)(3)(B)(ii); 8 C.F.R. § 1208.16(d)(2). Makir-Marwil does
not appeal these findings.
                                                 7
was in trouble with the law beginning at age 15. In 2005, Makir-Marwil pled nolo

contendere to charges of burglary of a vehicle and strong-arm robbery, in violation

of Florida Statutes §§ 810.02(4)(b) and 812.13(2)(c), respectively. He was

sentenced as a youthful offender to terms of 18 months’ probation for each offense.

The IJ found that Makir-Marwil’s 2005 robbery conviction resulted from an

incident in which one of his friends snatched an elderly woman’s purse. Makir-

Marwil yelled at his friend to stop. Makir-Marwil then fled to a house where he

was later arrested. As to his 2005 burglary conviction, Makir-Marwil was arrested

after a person in his neighborhood reported that his car had been stolen. Makir-

Marwil admitted taking the car, but explained that he “thought it was all right”

because the car’s owner knew him. These 2005 convictions were not listed in the

NTA, but Makir-Marwil does not dispute their validity.

      As to Makir-Marwil’s 2006 convictions identified in the NTA, the IJ found

that the 2006 burglary conviction involved a residence where a man and a woman

lived. Makir-Marwil stated that the male occupant of the residence broke through

a window and invited him in through the front door. The man told him that the

woman was not returning and that Makir-Marwil could take whatever he wanted.

Makir-Marwil admitted taking a televison, a computer, and a radio. As to his 2006

grand theft conviction, the IJ found that Makir-Marwil and his friends had taken a

go-cart from another person’s house and that he did not know the go-cart owner.
                                          8
      As to Makir-Marwil’s application for waiver of inadmissibility, the IJ found

that he was a “violent and dangerous individual” subject to Jean’s heightened

standard for obtaining a waiver of inadmissibility. See Jean, 23 I. & N. Dec. at 383.

Noting that Makir-Marwil “must waive not one, but four serious convictions,” the

IJ concluded that Makir-Marwil’s crimes “include distressing underlying facts that

classify him as a dangerous individual.”

      Specifically, the IJ found “particularly troubling” Makir-Marwil’s 2006

burglary of a residential dwelling, due to the “heightened risk of violence in such

crimes.” The IJ also noted that Makir-Marwil admitted to purchasing crack-

cocaine with the proceeds of the 2006 burglary. As to the 2005 robbery, the IJ

noted that strong-arm robbery was a “crime of violence” and found that the

conviction revealed “an exploitative nature because [Makir-Marwil] targeted a

vulnerable person, an elderly lady, for a purse snatching.” Although Makir-Marwil

was convicted as an accomplice, the IJ found that this fact did not mitigate the

seriousness of the offense. The IJ also noted that Makir-Marwil “was treated as a

juvenile delinquent and youthful offender [after his 2005 offenses], but he did not

stop his errant behavior until he was incarcerated in 2006.”

      Applying Jean’s heightened standard for “violent and dangerous

individuals,” the IJ found that Makir-Marwil failed to establish extraordinary

circumstances warranting a waiver of inadmissibility. The IJ found that Makir-
                                           9
Marwil and his family “would experience some hardship” upon his removal but

concluded that “such hardship would [not] amount to exceptional and extremely

unusual hardship.” As to disruption to his family, the IJ was not persuaded that

Makir-Marwil was an integral part of his family in the United States (his mother,

grandmother, and two U.S. citizen sisters).

          For purposes of this appeal, the critical part of the IJ’s decision is this next

paragraph because it is the IJ’s only discussion of the conditions in Sudan as they

pertain to Makir-Marwil’s application for a waiver of inadmissibility and whether

he has shown “extraordinary circumstances” under Jean. In this regard, the IJ

states:

                 The Court is also unconvinced that the political considerations
          present in this case demand favorable discretion. The Court reviewed
          all submitted documents and recognizes Sudan’s poor human rights
          record as well as the United States position on the Sudanese
          government. However, the Court fails to see how his case would
          reverberate beyond those directly impacted by [Makir-Marwil’s]
          removal. The Court finds, instead, that these issues are better
          analyzed and considered on alternate forms of relief, particularly relief
          under Article 3 of the Convention Against Torture.

We consider this paragraph in the context of Jean’s requirement that a “violent or

dangerous individual” must show “extraordinary circumstances, such as those

involving national security or foreign policy considerations, or cases in which an

alien clearly demonstrates that the denial of status adjustment would result in

exceptional and extremely unusual hardship.” Jean, 23 I. & N. Dec. at 383.
                                               10
Although this paragraph lacks clarity, the most reasonable reading is that the IJ

concludes that the conditions in Sudan are better analyzed and considered in

response to Makir-Marwil’s CAT claim and not as to whether Makir-Marwil has

established “exceptional and extremely unusual hardship” for purposes of a waiver

of inadmissibility. At best, this statement by the IJ addresses only the political or

foreign policy considerations affected by this case. But Jean also identifies

“exceptional and extremely unusual hardship” to the individual as a separate

extraordinary circumstance (apart from foreign policy considerations) that may

warrant relief in an appropriate case. In denying Makir-Marwil’s application for a

waiver of inadmissibility, the IJ did not consider any individual hardship to Makir-

Marwil resulting from the country conditions in Sudan, such as the abject poverty,

war, genocide, and forced military service, as well as the severe humanitarian crisis

in Sudan.

      The IJ, however, granted Makir-Marwil’s request for a deferral of removal

pursuant to CAT. The IJ observed that “Sudan’s human rights violations and

propensity to engage in state sponsored torture is well documented. In addition,

[Makir-Marwil’s] age, ethnicity, religion, and family background places him in a

high probability zone to be targeted for maltreatment by the Sudanese authorities.”

The IJ examined evidence in the administrative record and concluded that “torture

. . . is routinely practiced in Sudan, with specific intent, and with direct
                                           11
involvement of the government,” and that the practice of torture in Sudan was

“pervasive.” The IJ noted that Makir-Marwil “will be singled out for detention and

interrogation because of his age” and is “liable for national military service in

Sudan.” The IJ found that “it [is] a certainty that [Makir-Marwil] will be required

to endure some sort of interrogation by the Sudanese authorities” and that he “is

uniquely exposed to . . . high danger of torture.”

      The IJ found that the following facts met the burden of proof on Makir-

Marwil’s CAT claim: (1) Makir-Marwil is “not Arab” but “of southern African

descent with a dark complexion,” which would subject him to increased scrutiny;

(2) Makir-Marwil and his family are “Christians,” “the government of Sudan

engages in forced Islamization of non-Muslims,” and Makir-Marwil “would face

intense pressure from the Sudanese authorities to convert to Islam, much as

[Makir-Marwil’s] two uncles had been”; and (3) Makir-Marwil’s father “was

involved in politics, . . . had been arrested three times by the Sudanese authorities,

. . . disappeared as the family was leaving Sudan,” and—according to Makir-

Marwil’s mother—might “still be detained in jail.”

      In light of this record evidence, the IJ found that, if Makir-Marwil were

removed to Sudan, “there is a high likelihood that he would be further targeted by

the Sudanese authorities because of his family background and his father’s

involvement in politics.” Accordingly, the IJ granted Makir-Marwil’s application
                                           12
for deferral of removal under CAT. See 8 C.F.R. § 1208.16(c)(2).

F. Appeal to the BIA

      Makir-Marwil appealed to the BIA, challenging the denial of his application

for a waiver of inadmissibility. In pertinent part, Makir-Marwil argued that (1) the

IJ erred by employing a “categorical” approach, rather than a “fact-based” analysis,

of Makir-Marwil’s criminal convictions in determining that he was a “violent and

dangerous” individual subject to Jean’s heightened standard; and (2) even if Jean’s

heightened standard applied, the IJ erred in finding that Makir-Marwil had not

established “exceptional and extremely unusual hardship” to him as an individual

and especially in not analyzing and addressing the conditions in Sudan as part of

his hardship if returned there.

      Makir-Marwil stated this in several ways, such as by noting that the IJ

“properly found [Makir-Marwil] would be tortured if returned to Sudan” but failed

to address “the fact that torture of Mr. Makir-Marwil would rise to the level of

exceptional and extremely unusual hardship, which it surely does.” Later in his

brief, Makir-Marwil asserted that the IJ “failed to properly analyze the exceptional

and extremely unusual hardship that Mr. Makir-Marwil would suffer himself.”

Importantly, Makir-Marwil’s brief to the BIA argued that both “the torture of Mr.

Makir-Marwil and the horrific country conditions in Sudan not only allow[] for a

favorable exercise of discretion [but] compel[] a favorable exercise of discretion”
                                         13
in granting a waiver. His brief argued that “[t]he record and testimony demonstrate

the torture, abject poverty, war, genocide, and persecution that Mr. Makir-Marwil

would face if returned to Sudan.”

      In a two-to-one panel decision, the BIA rejected both of Makir-Marwil’s

assertions of error. First, the BIA majority concluded that the Attorney General’s

decision in Jean did not require the IJ to use a “fact-based” analysis in determining

whether an alien is “violent or dangerous.” The BIA found “no error in the [IJ’s]

determination that [Makir-Marwil’s] convictions for two separate counts of

burglary (one count of which involved a residential dwelling), grand theft, and

robbery, demonstrate that he ‘is a violent and dangerous individual’ based on the

analysis set forth in [the IJ’s] well-reasoned decision.”

      Second, the BIA majority rejected Makir-Marwil’s challenge to the IJ’s

“hardship” analysis. The BIA stated “the only factor that [Makir-Marwil] asserts

that the Immigration Judge erred in failing to consider is the fact that it is more

likely than not that he will be tortured upon return to Sudan.” However, as shown

above, Makir-Marwil’s brief to the BIA actually mentions other country

conditions—such as the “abject poverty,” “war,” and “genocide” in Sudan, and the

“persecution” that he would face if returned to Sudan—that do not rise to the level

of torture but might nevertheless create “exceptional and extremely unusual

hardship” to Makir-Marwil.
                                           14
      As to torture only, the BIA concluded that the IJ “did not err when he did not

address whether [Makir-Marwil] would be harmed upon return to Sudan.” The

reason the BIA saw was that Makir-Marwil “will not face any ‘exceptional and

extremely unusual hardship’ because he is not being removed to Sudan.” The BIA

added that “there is no basis in reality upon which to conclude that [Makir-Marwil]

will be tortured in Sudan because he is not being removed to Sudan. Our legal

analysis must be based on actual hardship, not hypothetical hardship.”

Accordingly, the BIA dismissed Makir-Marwil’s appeal.

      The BIA dissent disagreed on both issues. The dissent argued that Jean

required the IJ to employ a “fact-based” analysis to determine whether an alien is

violent or dangerous and concluded that the IJ’s analysis was “categorical” and

therefore insufficient under Jean. On the issue of the IJ’s hardship analysis, the

dissent argued that the temporary deferral of removal under CAT did not excuse

the IJ’s duty to consider evidence of Makir-Marwil’s potential torture in Sudan in

deciding whether to waive his inadmissibility. The dissent concluded that

“humanitarian consideration[s]” counseled in favor of waiving Makir-Marwil’s

inadmissibility and adjusting his status to lawful permanent resident.

      Makir-Marwil timely petitioned this Court for review.




                                          15
                                     II. DISCUSSION3

       Makir-Marwil’s petition raises two issues. First, he argues that the BIA

erred by concluding that Jean does not require a “fact-based” analysis of Makir-

Marwil’s prior convictions to determine whether he was a “violent or dangerous

individual.” Second, Makir-Marwil argues that the BIA erred in refusing to

consider the conditions in Sudan and evidence of the individual hardship Makir-

Marwil would suffer if removed to Sudan.4 We address each argument in turn.

A. “Categorical” or “Fact-Based” Analysis Under Jean

       Applying Jean, the IJ found that Makir-Marwil was a “violent or dangerous

individual” and thus could be granted a waiver only upon a showing of

“extraordinary circumstances, such as those involving national security or foreign

policy considerations, or cases in which an alien clearly demonstrates that the

denial of status adjustment would result in exceptional and extremely unusual

hardship.” Makir-Marwil argues that Jean required the IJ to apply a “fact-based”


       3
        We review questions of law de novo. De Sandoval v. U.S. Att’y Gen., 440 F.3d 1276,
1278 (11th Cir. 2006). We review the BIA’s decision and the IJ’s decision “[i]nsofar as the BIA
adopts the IJ’s reasoning.” Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1230 (11th Cir. 2006).
Here, the BIA expressly agreed with the IJ’s analysis of Makir-Marwil’s convictions. Therefore,
we review both the IJ’s and the BIA’s decisions.
       4
         This Court lacks jurisdiction to review a discretionary decision of the Attorney General,
including the discretionary denial of an application for a waiver of inadmissibility. See
INA § 242(a)(2)(B)(ii), 8 U.S.C. § 1252(a)(2)(B)(ii). However, challenges to the IJ’s and BIA’s
legal standards, such as the challenges here, are questions of law over which this Court has
jurisdiction. See INA § 242(a)(2)(D), § 1252(a)(2)(D).

                                                16
approach and to look to the underlying circumstances of his crimes, and that the IJ

failed to do so in determining that he was a “violent or dangerous individual.”

Because this argument turns so heavily on the actual language the Attorney

General used in Jean, we review the Attorney General’s opinion in more detail.

      In Jean, removal proceedings were commenced against Melanie Beaucejour

Jean, a Haitian refugee, after she finished serving a prison sentence for second-

degree manslaughter. 23 I. & N. Dec. at 374–75. Jean had confessed to shaking

and beating a toddler she was babysitting; the toddler died after Jean failed to call

911 or seek help. Id. at 374–75. Jean’s conviction rendered her inadmissible as an

alien convicted of a crime of moral turpitude. See INA §§ 212(a)(2)(A)(i)(I),

240(a), 8 U.S.C. §§ 1182(a)(2)(A)(i)(I), 1229a(a) (including in “classes of aliens

ineligible for . . . admission” aliens convicted of “a crime involving moral

turpitude”).

      Like Makir-Marwil, Jean did not contest her inadmissibility. Jean, 23 I. &

N. Dec. at 375–76. Rather, Jean applied for a waiver of inadmissibility under INA

§ 209(c), which, as described above, permits the Attorney General to waive an

alien’s inadmissibility “for humanitarian purposes, to assure family unity, or when

it is otherwise in the public interest.” Jean cited her fear of persecution in Haiti

and her desire to keep her family together as grounds for the waiver. The IJ

declined to waive Jean’s inadmissibility, but the BIA reversed in a short opinion,
                                           17
concluding that Jean had established grounds to waive her inadmissibility because

“the equities” warranted such discretionary relief. Id. at 383.

      Reversing the BIA, the Attorney General stated that the BIA’s analysis was

“grossly deficient” because the BIA made “no attempt to balance claims of

hardship to [Jean’s] family against the gravity of her criminal offense.” Id. The

Attorney General stated that the BIA “marginalize[d] the depravity” of Jean’s

crime and failed to attach any significance to the fact that Jean “confessed to

beating and shaking a nineteen-month-old child to death.” Id. Although

acknowledging that Jean’s removal “will undoubtedly impose a strain on her

family” and “will be a source of additional hardship for them,” the Attorney

General explained that the propriety of granting a § 209(c) waiver requires

consideration of both the potential “family hardships” and “the nature of the

criminal offense that rendered an alien inadmissible in the first place.” Id.

Balancing these considerations in Jean’s case, the Attorney General continued:

             In my judgment, that balance will nearly always require the
      denial of a request for discretionary relief from removal where an
      alien’s criminal conduct is as serious as that of the respondent. . . . It
      would not be a prudent exercise of the discretion afforded to me by
      [§ 209(c)] to grant favorable adjustments of status to violent or
      dangerous individuals except in extraordinary circumstances, such as
      those involving national security or foreign policy considerations, or
      cases in which an alien clearly demonstrates that the denial of status
      adjustment would result in exceptional and extremely unusual
      hardship. Moreover, depending on the gravity of the alien’s
      underlying criminal offense, such a showing might still be
                                          18
      insufficient. . . . For those aliens, like [Jean], who engage in violent
      criminal acts during their stay here, this country will not offer its
      embrace.

Id. at 383–84. Accordingly, the Attorney General denied Jean’s application for a

waiver of inadmissibility.

      Notably, the Attorney General in Jean required neither a “categorical” nor a

“fact-based” approach to determining whether a refugee’s conviction renders him a

“violent or dangerous individual.” See id. While Jean discusses the facts

surrounding the particular conviction in that case, there is no holding or

requirement in Jean that mandates a “fact-based” or “categorical” approach.

Rather, all Jean requires is an adequate consideration of the nature of the refugee’s

crime. Some crimes may be so serious and depraved that the IJ need only consider

the elements of the offense to determine that the alien is violent or dangerous.

Sometimes the IJ may delve into the facts and circumstances of the prior offenses

to determine whether the alien is violent or dangerous. The IJ need only make an

appropriate determination under the circumstances as to whether the alien is

violent or dangerous.

      In this case, the IJ adequately considered the nature of Makir-Marwil’s

crimes. For example, the IJ noted that Makir-Marwil (1) had to waive not one but

four serious criminal convictions, (2) showed an exploitative nature by preying on

an elderly lady who was a particularly vulnerable victim, and (3) burglarized a
                                          19
residential dwelling, a crime that creates a “heightened risk of violence.” The IJ

and the BIA committed no error in determining that Makir-Marwil is a violent or

dangerous individual subject to Jean’s heightened, “extraordinary circumstances”

standard for determining whether to grant a discretionary § 209(c) waiver of

inadmissibility.

B. Refusal to Consider Hardship in Denying Waiver of Inadmissibility

      Makir-Marwil next argues that the IJ and the BIA erred by failing to

consider evidence of the country conditions in Sudan and the hardship

Makir-Marwil individually would suffer upon removal to Sudan. We agree.

      As Makir-Marwil notes, an alien must raise all defenses to removal and

grounds for relief from removal in a single proceeding. See 8 C.F.R. § 1003.31(a)

& (c). If an application for relief is not filed by the deadline set by the IJ, that

ground for relief is deemed waived. Makir-Marwil was thus required to apply for a

waiver of inadmissibility at the same time as he applied for CAT relief. And if his

CAT deferral is eventually terminated, Makir-Marwil will not be able to reapply

for a waiver of inadmissibility.

      Although the deferral of removal under CAT resolves the torture issue, the

Attorney General may grant a waiver of inadmissibility for reasons other than the

possibility of torture, including “for humanitarian purposes, to assure family unity,

or when it is otherwise in the public interest.” INA § 209(c), 8 U.S.C. § 1159(c).
                                            20
Even if the refugee-applicant is violent—and thus subject to Jean’s heightened

standard—the IJ retains discretion to waive inadmissibility if “an alien clearly

demonstrates that the denial of status adjustment would result in exceptional and

extremely unusual hardship.” Jean, 23 I. & N. Dec. at 383. The grounds for

granting a § 209(c) waiver of inadmissibility are considerably broader in scope

than just the probability of torture. In some extraordinary situations, a refugee’s

removal may result in “exceptional and extremely unusual hardship” even if that

refugee will not be tortured.

      Both before the BIA and before this Court, Makir-Marwil asserted grounds

beyond just torture in an effort to establish “exceptional and extremely unusual

hardship” to justify waiving his inadmissibility. Before the BIA, Makir-Marwil

argued that he had shown that requisite hardship based on both the likelihood that

he would be tortured and “the horrific country conditions in Sudan.” Before this

Court, Makir-Marwil also argues that he established the requisite hardship based

on the “the abysmal conditions in Sudan, the fact that he has spent many of his

formative years in the United States, and his lack of a support structure or means of

surviving in Sudan.” Yet the IJ and the BIA denied Makir-Marwil’s application

for a waiver of inadmissibility based solely on the fact that he would not be

removed to Sudan until the possibility of torture had subsided.

      By failing to consider any of the other facts and circumstances short of
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torture in Makir-Marwil’s case, the IJ and BIA erred as a matter of law.

Accordingly, we grant Makir-Marwil’s petition in part and remand to the BIA with

instructions to remand to the IJ to consider in the first instance the argument that

the country conditions in Sudan and the other circumstances shown by Makir-

Marwil, in the complete record at the time of the hearing in this case, establish

“exceptional and extremely unusual hardship” and then whether Makir-Marwil’s

case warrants a discretionary waiver of his inadmissibility.

      PETITION GRANTED IN PART AND DENIED IN PART;

REMANDED FOR FURTHER PROCEEDINGS.




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