26 I. & N. Dec. 797
BIA2016Background
- Respondent, a lawful permanent resident from Guyana, was convicted in 2008 of sexual offenses involving a minor and placed in removal proceedings as an aggravated-felony offender.
- Respondent filed a Form I-918 (U visa petition) and Form I-192 (advance permission to enter / §212(d)(3)(A)(ii) waiver) with USCIS; USCIS denied both the U-petition and the waiver.
- Immigration Judge (IJ) administratively closed removal proceedings while USCIS adjudicated the U-petition; after USCIS denials the IJ recalendared the case and the respondent renewed a §212(d)(3)(A)(ii) waiver request before the IJ.
- The IJ concluded she had concurrent jurisdiction to adjudicate a §212(d)(3)(A)(ii) waiver for a U-petitioner, denied the waiver in the exercise of discretion, and ordered removal.
- The Board of Immigration Appeals (BIA) reviewed whether IJs have authority to decide §212(d)(3)(A)(ii) waiver requests made by petitioners for U nonimmigrant status and concluded IJs lack such authority for U-petitioners who are physically in the U.S.; appeal dismissed.
Issues
| Issue | Respondent's Argument | DHS's Argument | Held |
|---|---|---|---|
| Whether an Immigration Judge may adjudicate a §212(d)(3)(A)(ii) waiver requested by a petitioner for U nonimmigrant status | IJs have implicit authority (via Attorney General delegation and section 240 powers) to grant the §212(d)(3)(A)(ii) waiver for U-petitioners; L.D.G. supports IJ jurisdiction | USCIS has exclusive jurisdiction over U petitions and the related waiver process (§212(d)(14)); regulations and precedent limit IJ §212(d)(3) authority to deferred-inspection/exclusion contexts, not U-petitioners admitted in the U.S. | IJs do not have authority to adjudicate §212(d)(3)(A)(ii) waiver requests by U-petitioners in the United States; BIA dismissed the appeal |
Key Cases Cited
- L.D.G. v. Holder, 744 F.3d 1022 (7th Cir. 2014) (Seventh Circuit held IJs may grant §212(d)(3)(A)(ii) waivers to U applicants)
- Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005) (agency interpretations are owed Chevron deference unless statute is unambiguous)
- Holder v. Martinez Gutierrez, 132 S. Ct. 2011 (2012) (discusses deference to agency interpretations in immigration context)
- Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000) (statutory context should be read to produce coherent regulatory scheme)