Patricia Garcia Cabrera v. Merrick Garland, 21 F.4th 878

Patricia Garcia Cabrera, a Mexican national, entered the U.S. on a B-2 visa in 2014, overstayed, and was charged with removability in an NTA issued Feb. 12, 2018.
In Dec. 2015 she aided police after a serious domestic assault; she obtained the law-enforcement U-visa certification on Dec. 4, 2017 and filed a U-visa petition around Mar. 7, 2018.
After a venue change to Charlotte, the IJ set a removal hearing in Sept. 2018; Garcia Cabrera moved to continue to await USCIS adjudication of her U application.
The IJ denied the continuance (though he found a “significant probability” USCIS would grant the U visa), entered a removal order, and the BIA affirmed, relying on secondary factors and not making findings on the controlling primary factors.
Garcia Cabrera petitioned for review to the Fourth Circuit, which held the IJ and BIA abused their discretion by failing to apply and explain the primary-factor analysis for continuances related to pending U-visa relief, vacated the BIA decision, and remanded.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether IJ/BIA abused discretion in denying continuance to await U-visa adjudication	Garcia Cabrera: BIA/IJ ignored primary factors and presumption favoring continuance when a prima facie approvable U petition is pending	Government: Secondary factors (DHS opposition, administrative efficiency, lack of applications before IJ) justified denial	Court: Abuse of discretion; BIA failed to analyze primary factors and IJ misapplied law on materiality — vacated and remanded
Whether a U visa, if granted, would materially affect removal proceedings	Garcia Cabrera: Granting a U visa would materially affect proceedings (work authorization, motion to reopen/cancel, pathway to adjustment)	Government: USCIS — not IJ/BIA — has sole jurisdiction over adjustment, so U visa would not materially affect IJ proceedings	Court: Rejected Gov’t position; a U grant can materially affect removal (grounds to seek reopening/termination); IJ erred to treat it as immaterial
Whether the BIA may rely only on secondary factors without addressing primary factors	Garcia Cabrera: Primary factors (likelihood of relief and materiality) are paramount and must be considered	Government: Secondary factors can justify denial if they outweigh primary factors	Court: BIA cannot ignore primary factors; it must consider and explain primary factors and then balance secondary ones

Onyeme v. INS, 146 F.3d 227 (4th Cir. 1998) (denial of continuance reviewed for abuse of discretion)
Lendo v. Gonzales, 493 F.3d 439 (4th Cir. 2007) (agency abuses discretion if denying without rational explanation or departing from policy)
Yanez-Marquez v. Lynch, 789 F.3d 434 (4th Cir. 2015) (when BIA adopts IJ, courts review both decisions)
Cabrera Vasquez v. Barr, 919 F.3d 218 (4th Cir. 2019) (distinguishing review scope when BIA issues its own reasons)
Wambura v. Barr, 980 F.3d 365 (4th Cir. 2020) (focus on BIA reasoning where BIA issues independent opinion)
Caballero-Martinez v. Barr, 920 F.3d 543 (8th Cir. 2019) (IJ may grant continuance to await U-visa adjudication; BIA error to deny for lack of jurisdiction over U petition)
Arita-Deras v. Wilkinson, 990 F.3d 350 (4th Cir. 2021) (standards for reviewing what portion of IJ decision the BIA adopted)
Martinez v. Holder, 740 F.3d 902 (4th Cir. 2014) (scope-of-review principles for BIA adoption of IJ decisions)
Jean v. Nelson, 472 U.S. 846 (1985) (prudential avoidance of constitutional questions)
Spector Motor Co. v. McLaughlin, 323 U.S. 101 (1944) (principle of avoiding constitutional adjudication when unnecessary)