United States Court of Appeals For the First Circuit

No. 22-1397

FNU JANI,

Petitioner,

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Before

Barron, Chief Judge, Lipez and Kayatta, Circuit Judges.

Michael B. Kaplan, with whom Jeffrey B. Rubin, Todd C. Pomerleau, and Rubin Pomerleau PC were on brief, for petitioner.

Drew C. Brinkman, Senior Counsel for National Security, Office of Immigration Litigation, with whom Brian M. Boynton, Principal Deputy Assistant Attorney General, Civil Division, and Lindsay M. Murphy, Deputy Chief, National Security Unit, Office of Immigration Litigation, were on brief, for respondent.

July 29, 2024 KAYATTA, Circuit Judge. Indonesian national Jani (first

name unknown) petitions for review of a Board of Immigration

Appeals ("BIA") decision affirming an Immigration Judge's ("IJ")

order finding Jani ineligible for asylum because he once provided

material support to a foreign terrorist organization. Jani argues

that the agency violated both his constitutional due process rights

and its own regulations in so ruling. For the following reasons,

we find each of Jani's arguments to be unavailing. Accordingly,

we must deny the petition.

I.

We first describe the relevant statutory background, and

then recount, in two acts, the serpentine travel of a case that

has taken nearly twenty years to call for a decision by this court.

A.

The Immigration and Nationality Act ("INA") provides

that any noncitizen who has "engaged in a terrorist activity" is

ineligible for asylum. See

(b)(2)(A)(v),

1182(a)(3)(B)(i)(I). The statute defines "terrorist activity"

broadly to include "commit[ting] an act that the actor knows, or

reasonably should know, affords material support" to a terrorist

organization.

§ 1182(a)(3)(B)(iv)(VI)(dd). "Material

support" includes, among other things, "communications." Id.

The INA defines three types of "terrorist

organizations." The Secretary of State designates "Tier I" and "Tier II" terrorist organizations, while "Tier III" (or

"undesignated") terrorist organizations may be designated by IJs

or the BIA on a case-by-case basis in removal proceedings. See

(a)(3)(B)(vi); Khan v. Holder,

, 691 n.1

(7th Cir. 2014). If noncitizens provided material support to a

Tier I or II organization, they are barred from entry into the

United States regardless of their knowledge about the

organization's status.

(a)(3)(B)(iv)(VI)(cc); see

also Khan,

. If the organization is undesignated,

the noncitizen may attempt to "demonstrate by clear and convincing

evidence that [he] did not know, and should not reasonably have

known, that the organization was a terrorist organization."

(a)(3)(B)(iv)(VI)(dd). Otherwise, the noncitizen is

ineligible for asylum under the terrorism bar.

More broadly, if the evidence indicates that the

terrorism bar -- a ground for "mandatory denial" of asylum -- may

apply, the noncitizen "shall have the burden of proving by a

preponderance of the evidence that [it does] not apply."

(d). Meanwhile, noncitizens charged with removability

already have the burden to prove their eligibility for the

requested relief or protection from removal, including asylum.

Id.; 8 U.S.C. § 1229a(c)(4)(A). B.

Jani is a native and citizen of Indonesia who entered

the United States on a ten-day non-immigrant visa in April 2001.

In 2003, the Department of Homeland Security ("DHS") commenced

removal proceedings against Jani, charging him with removability

under

(a)(1)(B) for overstaying his visa. Jani

appeared before an IJ and conceded his removability as charged,

but applied for asylum and withholding of removal.

As Jani stated on his application, he is an ethnically

Chinese Indonesian. According to Jani, ethnic Chinese Indonesians

are a predominantly Christian minority in Indonesia who have been

persecuted by the country's predominantly Muslim majority. Jani

further stated that in February 2001, a group of native Indonesian

"extremist[s]" -- whom he did not know were "anti-Chinese and

anti-Christian" -- recruited Jani into their group. He stated

that he was "informed that they could help [him] earn more

substantial income by the means of demonstration and terrorism,"

and that they "succeeded in convincing [Jani]" to join. So, he

"then enrolled as an active member," and was "sworn in the presence

of the leadership of the group." But after he "observed their

practices and could see the planning program of destruction,"

including their "scheming to grab substantial amount[s] of money

by threat of terror," he realized he "made a fatal mistake." As

a result, Jani fled, risking his life in the process -- the group threatened to kill him and burned his family store. He eventually

made his way to the United States.

After Jani applied for asylum, he married Imelda Sumago

("Sumago") -- an Indonesian citizen who was also in removal

proceedings in the United States, and who had likewise applied for

asylum. Jani and Sumago's proceedings were subsequently

consolidated before the same IJ.

On August 15, 2006, the IJ held a hearing on Jani and

Sumago's asylum claims. After Sumago's testimony, Jani asked the

IJ to grant him asylum as a derivative beneficiary of Sumago's

application. The IJ stated its inclination to grant the couple

asylum on the basis of Sumago's principal claim, and noted that it

would not need to hear the merits of Jani's originally filed claim

due to his derivative status. However, the IJ permitted counsel

for DHS to cross-examine Jani about his involvement with the

terrorist group mentioned in his application.

The transcript of the ensuing colloquy between DHS

counsel and Jani contains dozens of "indiscernible" notations,

many of them at key moments of Jani's testimony. Some examples

include:

[DHS Counsel] TO MR. FNU JANI Q. [indiscernible]. A. Yes. Q. What does that group? A. It's a group -- a Muslim group called Jemaah Islamiya. Q. Islamiya Jemaah? A. Islamiya Jemaah. . . . Q. And they offered you money to join and what were you going to do for them? A. They promised me money, my job is as a liaison to stores belonged to the Chinese. Q. [indiscernible]. A. Yes. Q. And [indiscernible] this group, did they kidnapped and killed [indiscernible]. A. They stole their belongings and their houses, and burned their houses if they don't give the money. . . . [Q.] [indiscernible] did you actually go with them to identify which Chinese and Christians were to be targeted? [A.] Yes.

At the conclusion of the hearing, the IJ granted Sumago's

asylum application and granted Jani derivative asylee status. DHS

reserved its right to appeal Jani's claim to the BIA, but waived

appeal as to Sumago.

On September 12, 2006, DHS then filed a notice of appeal

with the BIA, arguing that Jani was ineligible for asylum under

the INA because he conceded membership in Jemaah Islamiyah, an

extremist organization intent on establishing an Islamic caliphate

across southeast Asia. DHS noted that the Secretary of State

designated Jemaah Islamiyah as a foreign terrorist organization in

2002 after it was deemed responsible for the bombing of a tourist

nightclub in Bali that killed 202 people that same year.

Meanwhile, DHS filed a motion with the IJ to reopen

Sumago's proceedings. DHS argued that it had mistakenly waived its right to appeal her case, and that, because Sumago and Jani's

cases had been consolidated, it was "appealing one case." After

further proceedings, the IJ ultimately denied the motion on

August 24, 2007, and DHS did not appeal.

On April 11, 2008, DHS filed a motion with the BIA to

suspend briefing in its appeal of Jani's asylum claim and to issue

a complete transcript. It noted that the version of the transcript

then available contained numerous "indiscernible" notations and

was therefore "unusable as evidence." The BIA granted DHS's

motion, and remanded proceedings to the IJ with instructions to

"take such steps as are necessary and appropriate to enable [the]

preparation of a complete transcript of the proceedings including

a new hearing, if necessary."

On September 15, 2008, the IJ held another hearing. On

direct examination, Jani testified that he had been recruited by

an organization in Indonesia called the "elite group," but that he

was not a member and never did anything for the group. DHS then

cross-examined Jani and, over the objections of Jani's counsel,

impeached him with his prior testimony from the August 2006 hearing

and his written application. In the course of his testimony, Jani

admitted to joining Jemaah Islamiya in December 2000, and to going

with the group at least once to identify Chinese Christians to be

targeted for extortion. At the conclusion of the hearing, the IJ found Jani

ineligible for asylum based on his membership in Jemaah Islamiya,

a designated foreign terrorist organization. The IJ therefore

ordered Jani to be removed to Indonesia.

Jani appealed to the BIA shortly thereafter, and the BIA

dismissed his appeal in June 2010. Jani then petitioned for review

to this court, but while that appeal was pending, DHS again moved

for the BIA to reopen Jani's removal proceedings. This time, DHS

asked that the record be reopened "to correct the application of

the material support bar" to Jani's asylum eligibility and

"re-analyz[e] the bar with regard to an undesignated terrorist

organization." The problem was that Jemaah Islamiya actually had

not been a designated Tier I foreign terrorist organization at the

time of Jani's alleged involvement (which pre-dated 2002). Yet

the IJ and BIA had applied the statutory terrorism bar applicable

to Tier I organizations. So, DHS asked the BIA to clarify that

the terrorism bar also applied to undesignated (or Tier III)

terrorist organizations, and to affirm on that alternative ground.

See

(a)(3)(B)(vi) (defining "terrorist

organization"). For his part, Jani agreed that proceedings should

be reopened given the mischaracterization of the terrorist

organization, yet he also asserted that DHS had not shown that the

terrorism bar applied. In March 2011, the BIA granted the motion to reopen.

However, in its order, the BIA found that "[g]iven the gravity" of

the terrorism bar at issue and "the incomplete nature of the

record," it was necessary to remand the matter "for a de novo

hearing to allow for a complete inquiry with regard to all issues

presented by these proceedings."

C.

On remand, the IJ held a hearing (Jani's third) over the

course of three days between November 2012 and January 2013.

During the hearing, the IJ rejected what it characterized as Jani's

estoppel-like argument against DHS's use of the transcripts from

the earlier 2006 and 2008 hearings to cross-examine Jani. The IJ

found it permissible for DHS to impeach Jani with reference to

transcribed portions of the 2006 hearing, even if other portions

were indiscernible. And the IJ noted that the ultimate issue of

what was or was not in the record from those prior hearings was

for the IJ to "sort out at the end." Jani then again admitted,

despite some contradictory testimony, that a "Muslim extremist"

recruited him to join an "elite group," and that he told a member

of the group about a rich Chinese businessman for it to target.

But he also insisted that he had "just mentioned that [one] person"

out of fear. Five years passed. In July 2018, the IJ denied Jani's

request for asylum and ordered him removed to Indonesia.1 The IJ

concluded that Jani was ineligible for asylum because there was

evidence that Jani provided material support to a

then-undesignated foreign terrorist organization, Jemaah Islamiya,

and that Jani failed to prove by a preponderance of the evidence

that the terrorism bar was inapplicable.

More specifically, the IJ found -- "based on the entirety

of the testimonial evidence in the record" -- that Jani was a

member of Jemaah Islamiya. The IJ noted that "[a]lthough the

transcript of the 2006 hearing is replete with indiscernibles

[sic.], it is apparent that [Jani] first identified the group as

Jemaah Islamiya without any prompting by DHS," and that he again

acknowledged his membership during the 2008 hearing. The IJ

rejected Jani's request to exclude the entire 2006 hearing

transcript, finding that it would consider the transcript but

"accord[] it reduced weight to account for the indiscernible

portions and the lack of context surrounding some of the properly

recorded sections."

1 The IJ also found that Jani was not eligible to apply for derivative withholding of removal under the INA or the Convention Against Torture ("CAT"), because Sumago was not granted that relief and because there are no derivative benefits for family members of those granted withholding of removal. See Cendrawasih v. Holder,

(1st Cir. 2009). Jani did not dispute this finding in his appeal to the BIA, nor does he raise it now, so we consider it waived. While the IJ declined to find Jani not credible, it found

that "[o]nly after his asylum application was denied due to the

terrorism bar did [Jani] attempt to distance himself from any

affiliation with Jemaah Islamiya," and that the IJ found Jani's

"self-serving recantation" at the 2012–13 hearings unpersuasive.

Rather, the IJ found that Jani admitted that he swore allegiance

to Jemaah Islamiya, and that he was recruited to identify and

coerce "donations" from Chinese businessmen by use of threats.

And it found that, by admitting to identifying at least one such

possible target, Jani provided Jemaah Islamiya with material

support in the form of "communications" to facilitate extortion.

Moreover, the IJ found Jani's testimony that he only identified

the businessman out of fear insufficient to prove by clear and

convincing evidence that he did not know (or should not have known)

that Jemaah Islamiya was a terrorist organization. Consequently,

the IJ concluded that Jani failed to show by a preponderance of

the evidence that the terrorism bar did not apply.

Jani then appealed to the BIA. As relevant here, he

argued, first, that the IJ's findings did not warrant application

of the terrorism bar because he did not provide material support

to Jemaah Islamiya. To that end, Jani referenced his due process

rights (albeit only in his recitation of facts) and his

unsuccessful attempts to preclude further use of the 2006

transcript in subsequent proceedings. Second, he made a procedural argument. Specifically, he argued that he has held derivative

asylum status since 2006, when the IJ granted his wife Sumago's

principal claim and DHS waived its right to appeal her claim. As

a result, he argued that the agency could only terminate its grant

of asylum to Jani as a derivative asylee pursuant to

(f).

On April 21, 2022, the BIA dismissed Jani's appeal. The

BIA found that the record supported the IJ's determination that

Jani provided material support to Jemaah Islamiya by identifying

a Chinese businessman as a target for the group to extort. As

relevant here, the BIA found that while the 2006 hearing transcript

contained numerous "indiscernible" notations, the IJ made

"reasonable inferences from direct and circumstantial evidence of

the record as [a] whole" to reach its conclusions. Additionally,

the BIA rejected Jani's procedural claim, finding that Jani's

derivative asylee status never became administratively final

because the government properly reserved its right to appeal, and

subsequently did appeal, his derivative claim in 2006.2

Jani now petitions this court for review, asserting two

principal claims of error. First, he argues that the IJ and BIA's

reliance on the defective 2006 hearing transcript in subsequent

2 The BIA also refused to consider Jani's claim for protection under CAT, see

(c), 1208.17–1208.18, because Jani expressly abandoned pursuit of that claim before the IJ. Jani likewise raises no such claim here, so we deem it waived. proceedings violated his due process rights. Second, he reasserts

his procedural claim, arguing that the finality of the IJ's grant

of asylum to Sumago meant DHS had to (and failed to) follow the

procedures outlined at

(f) to terminate Jani's

ostensible derivative asylee status.

II.

When the BIA adopts and affirms an IJ's decision while

adding its own gloss, we review both decisions together.

Varela-Chavarria v. Garland,

(1st Cir. 2023).

We "generally lack jurisdiction to review factual

findings underlying a denial of asylum under a terrorism bar."

Viegas v. Holder,

(4th Cir. 2012); see

(b)(2)(D). In any event, Jani does not meaningfully attempt

to dispute the agency's factual findings on appeal, apart from

arguing in passing that he supported an "elite group," not Jemaah

Islamiya. So, even if we had jurisdiction to consider this

argument, the record supports the agency's conclusion that Jani

supported Jemaah Islamiya, as Jani himself testified in 2008. We

do, though, retain jurisdiction to review claims of legal

error -- including the two Jani asserts here -- de novo. See

(a)(2)(D). III.

A.

We begin with Jani's constitutional due process claim,

which comes in two shades. First, Jani argues that the IJ and

BIA's reliance on the defective 2006 hearing transcript violated

his due process right to a fundamentally fair hearing and

prejudiced his ability to perfect an appeal before the BIA and

this court. Second, and relatedly, he argues that the agency

unlawfully denied him a fair opportunity to reconstruct the record

after the transcription issue arose, including by letting DHS use

the 2006 transcript as a tool to impeach him on cross-examination.

1.

As a threshold matter, the government parries that this

court lacks jurisdiction over Jani's due process claim because our

jurisdiction extends only to "colorable" constitutional claims and

questions of law, see Elysee v. Gonzales,

(1st

Cir. 2006), which Jani's claims are not. We reject this

jurisdictional contention. We have generally held that a

"[noncitizen] in an immigration proceeding . . . is entitled to a

fair hearing," although "not necessarily a perfect one," and thus

can succeed on a due process claim if the due process violation

caused prejudice. Santosa v. Mukasey,

, 93–94 (1st

Cir. 2008) (quoting Pulisir v. Mukasey,

(1st

Cir. 2008)). Indeed, this court has recognized that "there is a due process violation if [a removal proceeding] was so

fundamentally unfair that the [noncitizen] was prevented from

reasonably presenting his case." Jobe v. INS,

, 99 n.3

(1st Cir. 2001) (discussing an asylum claim); see also Marincas v.

Lewis,

(3d Cir. 1996) (assuming that Congress

intended the asylum procedure to accord with the basics of

procedural due process). We have also held that "due process

demands a 'reasonably accurate [and] reasonably complete

transcript,' or an adequate substitute, to allow for meaningful

and adequate appellate review" of IJ and BIA decisions. See Oroh

v. Holder,

(1st Cir. 2009) (citation omitted).

Consequently, we decline the government's invitation to find

Jani's due process claim not even reviewable.

The government next argues that Jani's failure to

administratively exhaust his due process arguments below precludes

us from considering them now. As we have consistently held,

"[i]ssues 'not raised before the BIA may not be raised for the

first time on a petition for review.'" Varela-Chavarria,

(quoting Bernal-Vallejo v. INS,

(1st Cir.

1999)); see also

(d)(1). If, however, the BIA lacks

"the power to address the matter as to which exhaustion is

claimed," then no exhaustion is required. Bernal-Vallejo,

. But while "'[t]he BIA is without jurisdiction to

adjudicate purely constitutional issues,'" it can assess procedural errors in IJ proceedings, "even if such errors are

characterized as due process concerns." Varela-Chavarria,

(quoting Ravindran v. INS,

, 762–63 (1st

Cir. 1992)).

In his appeal to the BIA, Jani made a few

arguments -- albeit couched in his recitation of facts -- that one

could read to fairly raise the transcript-related procedural

issues he now more squarely invokes. First, he argued that the

BIA's 2011 order for a "de novo hearing," given the "incomplete

nature of the record" and the gravity of the terrorism bar at

issue, "vacated" all prior IJ and BIA decisions. Second, Jani

argued that he is "entitled to due process of law in these

proceedings" before the IJ and BIA, emphasizing the recurring

issues with regard to DHS and the IJ's use of the defective 2006

hearing transcript in subsequent proceedings. And in relevant

part, he noted that the most recent 2018 IJ decision made use of

the defective transcript even though DHS had told the BIA it was

"unusable as evidence."

The BIA's decision addressed the gist of Jani's

complaint about the use of the transcript. This suggests that

Jani's brief on appeal was indeed sufficient to bring the argument

to the attention of the BIA. And, in any event, even when a

petitioner does not foursquare raise an issue, we deem it preserved

if the BIA elects "to address in sufficient detail the merits of a particular issue." Mazariegos-Paiz v. Holder,

(1st Cir. 2013). We therefore find Jani's challenges related to

the defective transcript -- now framed in the language of due

process -- properly before us.

2.

On the merits, however, Jani's due process arguments

surrounding the 2006 hearing transcript -- from DHS's use of the

transcript during his hearings to the IJ and BIA's reliance on it

as part of the record -- all fall short.

As a general matter, Jani was entitled "to a fair

hearing, not necessarily a perfect one." Pulisir,

. "Strict rules of evidence do not apply to immigration

proceedings, and it is normally enough if the IJ reasonably finds

a piece of evidence to be reliable and its use to be fundamentally

fair." Bonilla v. Garland,

(1st Cir. 2022)

(cleaned up and citation omitted). Even under the rules of

evidence, opposing party statements are generally admissible, see

Fed. R. Evid. 801(d)(2), as is extrinsic evidence of a witness's

prior inconsistent statement, see Fed. R. Evid. 613(b). A witness

may also be asked about a prior statement without being shown the

statement itself. See Fed. R. Evid. 613(a), 801(d)(1)(A).

Here, the record does not show that the defective 2006

hearing transcript, despite its indiscernible portions, prejudiced

Jani in subsequent proceedings. Given the IJ's broad authority to consider relevant material from prior proceedings, see

(a), and that the parties were unbound from the rules of

evidence, Jani is hard-pressed to show that the 2006 transcript

was not fair game for impeachment purposes. There is certainly no

categorical rule that incompletely recorded or remembered

conversations cannot be used for any purpose. To the contrary, an

IJ "may receive in evidence any oral or written statement that is

material and relevant to any issue in the case previously made by

the respondent or any other person during any investigation,

examination, hearing, or trial."

Moreover, the IJ's conduct

at both Jani's 2008 and 2012–13 hearings was more than aboveboard.

The IJ affirmatively engaged in sustained colloquies with the

parties regarding Jani's many objections to DHS's use of the

transcript to impeach Jani, taking pains to ensure that DHS was

accurately representing Jani's earlier testimony.

At bottom, the record shows only that Jani fell victim

to effective cross-examination. At both hearings, Jani ultimately

volunteered several self-defeating admissions. At the 2008

hearing, he admitted to joining Jemaah Islamiya in 2000, going to

a remote area where the group stored weapons, and identifying one

Chinese businessman for the group to extort. And at the 2012–13

hearing, he again admitted to telling the "elite group" about at

least one rich Chinese businessman for it to extort. Neither DHS's use of the transcript as part of those efforts, nor the IJ's

treatment thereof, denied Jani a fair hearing.

In terms of the IJ and BIA's reliance on the transcript

as part of its ultimate eligibility decision, Jani fails to

demonstrate why it was improper for the IJ (and the BIA) to

consider the entirety of the record. See

(a).

That administrative record consists of "[t]he hearing before the

[IJ], including the testimony, exhibits, applications, proffers,

and requests, the [IJ's] decision, and all written orders, motions,

appeals, briefs, and other papers filed in the proceedings."

§ 1240.9. While the IJ has discretion to "exclude from the record

any arguments made," id., Jani points to no relevant authority

suggesting that the agency should have shut its eyes to plainly

relevant material from past proceedings. Indeed, as the IJ noted

at the 2012 hearing, the ultimate issue of what was (or was not)

in the record was for him to "sort out at the end." And ultimately,

in its 2018 decision, the IJ prudently noted that it accorded the

2006 transcript "reduced weight" to account for the indiscernible

portions and lack of context surrounding certain parts of Jani's

testimony. This was more than enough to ward off any due process

concerns. Consequently, we find no fault in the agency's

circumscribed use of the transcript as part of the record.

Jani's remaining claims of procedural

impropriety -- assuming without deciding that they were administratively exhausted -- fare no better. First, Jani argues

that the IJ improperly held an evidentiary hearing in 2008 that

led it to reverse its prior grant of asylum to Jani, when it should

have limited the hearing to reconstructing the record. However,

the BIA instructed the IJ to "take such steps as are necessary and

appropriate to enable [the] preparation of a complete transcript

of the proceedings including a new hearing, if necessary."

(Emphasis added.) That is precisely what the IJ did. Nothing in

the BIA's order precluded the IJ from hearing additional testimony,

or conducting further fact-finding, as part of its need to

reconstruct the record. Second, Jani claims that the IJ failed to

conduct a "de novo" hearing as instructed by the BIA after its

second remand order in 2011. The INA does not define "de novo,"

but Jani argues that the hearing should have been conducted from

scratch, i.e., "as if the original hearing[s] had not taken place."

To Jani, the BIA's "de novo" instruction precluded any further

reliance -- either by DHS or the agency -- on the previous record,

including the 2006 hearing transcript. But conducting a hearing

de novo does not require turning a blind eye to testimony from a

prior hearing. Or at least Jani cites no authority for so

construing the BIA's order for a de novo hearing.

In short, Jani had ample opportunity to "examine and

object to the evidence against him" and "to present evidence in his [] own behalf" across at least three hearings before the IJ.

Id. § 1240.10(a)(4). He has suffered no lack of due process.

B.

We next turn to Jani's claim that the agency failed to

effectively terminate his derivative asylee status, which Jani

says has been administratively final since at least 2006.

1.

Under the INA, "[a] spouse or child . . . of [a

noncitizen] who is granted asylum . . . may, if not otherwise

eligible for asylum, . . . be granted the same status as the

[noncitizen] if accompanying, or following to join, such

[noncitizen],"

(b)(3)(A), "unless it is determined

that the spouse or child is ineligible for asylum" under the law,

(a). Otherwise, derivative asylees "shall be

granted asylum for an indefinite period unless the principal's

status is revoked."

(g).

As to finality, "[e]xcept when certified to the [BIA],

the decision of the [IJ] becomes final upon waiver of appeal or

upon expiration of the time to appeal if no appeal is taken[,]

whichever occurs first."

§ 1003.39. If an appeal is taken,

the IJ's decision remains non-final, and jurisdiction vests with

the BIA, whose decision then becomes final unless it remands the

case back to the IJ or refers it to the Attorney General. See id.

§ 1003.1(d)(7). An IJ or the BIA may also "reopen" a final decision for purposes of terminating a grant of asylum. Id.

§ 208.24(f). "In such a reopened proceeding, [the government]

must establish, by a preponderance of evidence, one or more of the

grounds" of asylum ineligibility. Id.

2.

Jani argues that because Sumago's claim and his

derivative claim were consolidated and granted in 2006, DHS's

waiver of its right to appeal Sumago's principal claim rendered

both their claims final. Consequently, he argues that the agency

erred in treating his claim as non-final in subsequent proceedings,

and that it failed to hold DHS to its burden under

to show that Jani's derivative asylee status should be terminated.

Jani's argument is belied by both the record and

regulation. First, the IJ's order granting Jani derivative asylee

status on August 15, 2006, expressly noted that DHS reserved its

right to appeal his claim, which DHS had also reserved at the

conclusion of the hearing itself. DHS then promptly appealed

Jani's claim to the BIA on September 12, 2006. The BIA, in turn,

remanded proceedings to the IJ, who then found Jani ineligible for

asylum. At no point did Jani receive a final administrative order

granting him asylum. The agency, therefore, properly treated

Jani's claim as non-final in subsequent proceedings. See

(d)(7), 1003.23 (noting that an IJ's order is not final

if properly appealed to the BIA). Meanwhile, Jani points to no authority requiring that

DHS appeal the IJ's grant of asylum to Sumago in order to appeal

Jani's derivative claim. The INA specifically contemplates

circumstances such as this, where a principal applicant may be

eligible for asylum but their derivative claimant is not. See

(b)(3)(A) (stating that a spouse of an asylee "may"

be granted asylum "if not otherwise ineligible for asylum"). As

a result, we find no error in the agency's treatment of Jani's

derivative claim as non-final, despite the finality of Sumago's

principal claim.

IV.

For the foregoing reasons, we must deny the petition.