951 F.3d 848
7th Cir.2020Background
- Guerra Rocha entered the U.S. in June 2016 with her two sons and claimed fear of persecution by a Mexican cartel; she passed a credible‑fear interview and was paroled.
- While in the U.S. she suffered domestic violence from a Chicago resident, Lorenzo Torres; she cooperated with police and testified at his criminal trial (he was acquitted).
- She filed a U‑visa application (as a victim cooperating with law enforcement) on October 10, 2017; USCIS processing times for U‑visas are lengthy.
- The immigration judge unexpectedly advanced her removal hearing from December to October 20, 2017; Guerra Rocha had not yet received U‑visa receipts and counsel did not request a continuance at that hearing; the IJ denied asylum, withholding, and CAT relief.
- On appeal the BIA affirmed the denials and summarily refused to remand so the IJ could consider a continuance to await the U‑visa decision, citing DHS opposition, collateral nature of the U‑visa, timing, and delay—without addressing prima facie U‑visa eligibility.
- The Seventh Circuit held the BIA abused its discretion by failing to apply its own precedents (requiring assessment of likelihood of success/prima facie eligibility) and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the BIA abused its discretion by denying remand for a continuance to await U‑visa adjudication | Guerra Rocha: she is prima facie eligible for a U‑visa and the IJ should have continued proceedings | DHS: U‑visa relief is collateral; immigration court cannot grant U‑visas; DHS opposed continuance and cited delay | Court: BIA abused its discretion—it failed to evaluate likelihood of success/prima facie eligibility as Sanchez Sosa requires; remand ordered |
| Whether denial of a continuance is judicially reviewable and standard of review | Denial is reviewable; abuse‑of‑discretion standard applies | Government invoked §1252 limits but accepted abuse‑of‑discretion review | Court: Reviewable for abuse of discretion (consistent with Kucana/Calma) |
| Whether USCIS processing delay/backlog alone justifies denial of a continuance | Delay is not a permissible sole reason to deny continuance | DHS argued delay and administrative efficiency supported denial | Court: Delay alone insufficient; Board must evaluate required factors and explain decision |
Key Cases Cited
- Baez‑Sanchez v. Barr, 947 F.3d 1033 (7th Cir. 2020) (immigration judges may exercise procedural powers needed for U‑visa process)
- Baez‑Sanchez v. Sessions, 872 F.3d 854 (7th Cir. 2017) (related precedent on U‑visa procedures and IJ authority)
- Calma v. Holder, 663 F.3d 868 (7th Cir. 2011) (denial of continuance reviewable for abuse of discretion)
- Kucana v. Holder, 558 U.S. 233 (2010) (limits on jurisdictional bars; discretion created by regulation is reviewable)
- Toure v. Barr, 926 F.3d 403 (7th Cir. 2019) (abuse‑of‑discretion standard for BIA denials)
- Jawad v. Holder, 686 F.3d 400 (7th Cir. 2012) (BIA's failure to address critical legal elements is a reviewable question of law)
- Wu v. Holder, 571 F.3d 467 (5th Cir. 2009) (delay alone cannot be the sole basis for denying continuance)
- Mansour v. INS, 230 F.3d 902 (7th Cir. 2000) (BIA must give reasoned explanations sufficient for judicial review)