L. D. G. v. Eric Holder, Jr.
744 F.3d 1022
| 7th Cir. | 2014Background
- L.D.G. and husband entered the United States without inspection in 1987 and later raised four U.S.-citizen children in California.
- In 2006, a kidnapping and violent assault of the family occurred, leading to fear and financial hardship and the husband’s entry into the drug trade.
- L.D.G. pleaded to a drug-related count; she received probation and time served; her husband is serving a prison sentence.
- In November 2007, DHS initiated removal proceedings; L.D.G. sought a U Visa and USCIS denied waivers of inadmissibility under 1182(d)(14), denying the visa petition as a matter of course.
- L.D.G. requested the IJ to independently waives inadmissibility under 1182(d)(3)(A) to pursue a U Visa; the IJ and Board held no concurrent jurisdiction.
- The Seventh Circuit ultimately held that the IJ has jurisdiction to grant a waiver under 1182(d)(3)(A) to enable eligibility for a U Visa, and remanded with instructions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the IJ have jurisdiction to waive inadmissibility under 1182(d)(3)(A) for a U Visa applicant? | L.D.G. argues concurrent jurisdiction exists for waiver. | Board/USCIS regulation gives exclusive jurisdiction to USCIS for waivers. | IJ has jurisdiction to grant 1182(d)(3)(A) waiver. |
| Is DHS's interpretation of regulations entitled to deference under Auer in this context? | Deference should apply to DHS interpretation of its own regulations. | Auer deference applies and Board’s view controls. | Auer deference is not applicable; Board's interpretation is not controlling. |
| Does 1182(d)(14) exclusivity foreclose 1182(d)(3)(A) waivers for U Visa applicants? | 1182(d)(14) grants exclusive waiver authority to DHS, thus precluding 1182(d)(3)(A). | 1182(d)(3)(A) remains a valid path; coexistence is possible. | 1182(d)(14) and 1182(d)(3)(A) can coexist; IJ may grant 1182(d)(3)(A) waivers. |
| Is Borrego v. Mukasey controlling or distinguishable for retroactivity concerns? | Borrego prohibits retroactive waivers in removal proceedings. | Borrego is distinguishable; L.D.G. seeks forward-looking relief to qualify for a U Visa. | Borrego is inapposite; IJ may grant forward-looking 1182(d)(3)(A) waiver. |
| What is the practical effect of dual-track waivers on administration and efficiency? | Concurrent avenues can improve efficiency in adjudication. | Exclusive Uber control might simplify procedures. | Dual-track waivers offer efficiency advantages and avoid inconsistency. |
Key Cases Cited
- Borrego v. Mukasey, 539 F.3d 689 (7th Cir. 2008) (retroactive waivers not controlling for forward-looking relief)
- Atunnise v. Mukasey, 523 F.3d 830 (7th Cir. 2008) (IJ may grant waivers under 1182(d)(3) in U Visa context)
- Kiorkis v. Holder, 634 F.3d 924 (7th Cir. 2011) (de novo review of Board; administrative law standards)
- In re Merchants Grain, Inc., 93 F.3d 1347 (7th Cir. 1996) (statutory interpretation and ambiguity in regulatory context)
- Cardoza-Fonseca, 480 U.S. 421 (1987) (alien-benefit rules; longstanding deference to ambiguous deportation statutes)
- Carcieri v. Salazar, 555 U.S. 379 (2009) (implied repeal and interpretive principles in statutory construction)
- Loving v. United States, 517 U.S. 748 (1996) (implied-decision framework for agency interpretations)