9 F.4th 585
8th Cir.2021Background
- Petitioners (Mexican nationals: Claudia Gonzalez Quechuleno and her daughters) sought admission at San Ysidro on Dec. 9, 2015, were paroled, then issued Notices to Appear and conceded inadmissibility.
- After removal proceedings, an IJ denied their asylum/withholding/CAT claims on June 1, 2017 and ordered removal; Petitioners then filed a U-visa petition with USCIS while their BIA appeal was pending.
- Petitioners asked the BIA to administratively close or to remand for a continuance pending adjudication of the U-visa; the BIA denied administrative closure (citing intervening AG guidance) and later denied Petitioners’ motion to reopen/remand under Matter of Sanchez Sosa.
- The government conceded Petitioners’ prima facie U-visa eligibility and diligence in filing the petition.
- The BIA refused to apply Sanchez Sosa factors or remand to the IJ, citing USCIS’s exclusive jurisdiction over U-visa adjudication and the U-visa backlog; Petitioners sought review.
- The Eighth Circuit held the BIA abused its discretion, vacated the May 2020 order, and remanded for proceedings consistent with the opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BIA abused discretion by denying motion to reopen/remand for continuance pending U-visa adjudication | BIA must apply Sanchez Sosa factors or remand to the IJ to consider a continuance | BIA may deny because it lacks jurisdiction over U-visa adjudication and because of long USCIS backlog | Court: BIA abused its discretion by neither applying Sanchez Sosa nor remanding; vacate and remand |
| Whether BIA may refuse continuance because USCIS has exclusive jurisdiction over U-visa petitions | Petitioners: IJ/BIA may grant continuances despite lacking jurisdiction over visa adjudication | DHS: Exclusive USCIS jurisdiction over U-visas precludes relief from immigration court/BIA | Court: Jurisdictional argument insufficient; IJ/BIA may grant continuances and BIA erred to deny on that basis |
| Whether USCIS U-visa backlog justifies denying continuance | Petitioners: Backlog is not petitioner-caused delay and favors a continuance under Sanchez Sosa | DHS: Multi-year backlog supports denial of continuance | Court: Backlog alone does not justify denial; Sanchez Sosa directs that delay not attributable to petitioner favors continuance |
| Whether BIA was required to follow Caballero-Martinez/Sanchez Sosa framework | Petitioners: Caballero-Martinez controls when U-visa filed during BIA appeal; BIA must apply Sanchez Sosa or explain departure | DHS: BIA asserted Caballero-Martinez did not require reopening | Court: BIA misapplied/ignored controlling precedent and failed to provide a reasoned explanation; therefore abused discretion |
Key Cases Cited
- Caballero-Martinez v. Barr, 920 F.3d 543 (8th Cir. 2019) (Sanchez Sosa factors control when U-visa filed while appealing to BIA; BIA/IJ may grant continuances)
- Clifton v. Holder, 598 F.3d 486 (8th Cir. 2010) (BIA abuses discretion if decision lacks rational explanation or departs from established policy)
- Habchy v. Filip, 552 F.3d 911 (8th Cir. 2009) (BIA must articulate a reasoned basis when denying motions to reopen)
- Guerra Rocha v. Barr, 951 F.3d 848 (7th Cir. 2020) (USCIS backlog does not justify denial of continuance where petition appears approvable)
- Benitez v. Wilkinson, 987 F.3d 46 (1st Cir. 2021) (BIA must follow Sanchez Sosa framework or explain a different standard)
- Malilia v. Holder, 632 F.3d 598 (9th Cir. 2011) (USCIS processing delays are not a basis to deny an otherwise reasonable continuance)
- Osei v. I.N.S., 305 F.3d 1205 (10th Cir. 2002) (BIA abuses discretion when it departs from its prior practice without reasoned explanation)