L-N-Y, 27 I. & N. Dec. 755

Respondent is a Mexican national who entered the U.S. without admission in 1997 and was convicted in 2018 of attempted possession of a controlled substance.
DHS detained him in Jan 2019 and placed him in removal proceedings; IJ found removability under presence without admission.
The respondent sought U nonimmigrant status based on a 2009 criminal incident; he received the law enforcement certification and mailed his U petition on April 12, 2019—only about a month before his merits hearing.
At the May 29, 2019 individual hearing the IJ granted waivers of inadmissibility but denied a continuance to await USCIS adjudication of the U petition and ordered respondent removed.
On appeal the respondent submitted a Sep 19, 2019 USCIS informational letter stating his petition appears prima facie approvable but cannot be granted because the annual U‑visa cap was reached; respondent remains detained.
BIA considered primary factors (likelihood of relief; materiality) and secondary factors (diligence, DHS position, administrative efficiency, detained status) and dismissed the appeal and denied remand.

Issue	Respondent's Argument	DHS's Argument	Held
Whether IJ abused discretion by denying continuance to await USCIS adjudication of U visa	Respondent argued he was prima facie eligible and a grant would materially affect removal; sought continuance for adjudication	DHS opposed continuance based on respondent’s unreasonable delay and projected long/uncertain USCIS processing	Denied — IJ/BIA properly balanced factors (lack of due diligence, DHS opposition, administrative efficiency, detained status) and did not abuse discretion
Whether denial of continuance denied due process	Denied continuance prejudiced respondent’s ability to obtain relief	Denied prejudice; petition not yet approved and relief speculative	Denied — no actual prejudice shown; respondent may pursue U visa after removal
Whether motion to remand should be granted based on USCIS informational letter	Letter shows prima facie approval and remand could change outcome	Letter confirms petition not approved and caps make grant speculative; remand unnecessary	Denied — informational letter would not likely change result; remand not warranted

Toure v. Barr, 926 F.3d 403 (7th Cir. 2019) (upholding denial of continuance where applicant unreasonably delayed pursuing collateral relief)
Souley v. Holder, 779 F.3d 720 (7th Cir. 2015) (prejudice requirement to establish denial of due process in immigration proceedings)
Baez‑Sanchez v. Sessions, 872 F.3d 854 (7th Cir. 2017) (discussed in context of IJ authority to grant waivers of inadmissibility)