Background

• Respondents, Mexican family, were served April 10, 2002 and sought a continuance in 2005 to await USCIS decision on lead respondent’s U visa petition; IJ denied continuance and cancellation applications; Board dismissed on appeal in 2007; Ninth Circuit remanded in 2010 for evaluation of continuance issue; on remand, DHS opposed continuance citing lack of evidence and prima facie eligibility; Board remands again for Immigration Judge to assess good cause per Hashmi/Rajah framework.
• Ninth Circuit remanded for proceedings on U visa continuance after finding the IJ abused discretion in denying continuance; record lacked proof of USCIS filing on remand.
• Regulations authorize continuances for good cause; Hashmi/Rajah framework governs good-cause analysis for U visas; DHS response, prima facie eligibility, and continuance rationale are central factors.
• USCIS has exclusive jurisdiction over U visa petitions and eligibility, but IJ may grant continuance to await adjudication while evaluating prima facie eligibility and help to law enforcement.
• Alien bears burden to show prima facie eligibility including substantial abuse, LEC, and helpfulness to law enforcement; delay in USCIS is not per se fatal to continuance.

Issues

Key Cases Cited

• Sanchez v. Mukasey, 508 F.3d 1254 (9th Cir. 2007) (USCIS jurisdiction over U visa petitions and LEC discretion cited)
• Lee v. Holder, 599 F.3d 973 (9th Cir. 2010) (context on immigration relief and U visa framework)
• Torres-Tristan v. Holder, 656 F.3d 653 (7th Cir. 2011) (discusses LEC and admissibility considerations for U visas)
• Sanchez v. Holder, 373 F. App’x 719 (9th Cir. 2010) (remand related to continuance for U visa)
• Malilia v. Holder, 632 F.3d 598 (9th Cir. 2011) (adopts Hashmi framework for good cause in visa continuation)