CARLOS ANTONIO GRANADOS BENITEZ, Petitioner, v. ROBERT M. WILKINSON, Acting United States Attorney General, Respondent.
No. 20-1541
United States Court of Appeals, First Circuit
January 28, 2021
For the First Circuit
No. 20-1541
CARLOS ANTONIO GRANADOS BENITEZ,
Petitioner,
v.
ROBERT M. WILKINSON, Acting United States Attorney General,*
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Lynch and Selya, Circuit Judges,
and Laplante,** District Judge.
Paige Austin, with whom Philip L. Torrey, Make the Road New York, and the Harvard Law School Crimmigration Clinic were on brief, for petitioner.
Brian D. Straw, Gregory E. Ostfeld, and Greenberg Traurig, LLP on brief for ASISTA Immigration Assistance, Asian Pacific Institute on Gender-Based Violence, National Coalition Against Domestic Violence, National Network to End Domestic Violence, Safe Horizon, and Tahirih Justice Center, amici curiae.
Christopher Bates, with whom Jeffrey Bossert Clark, Acting Assistant Attorney General, Linda S. Wernery, Assistant Director, and William C. Minick, Attorney, Office of Immigration Litigation,
January 28, 2021
I.
Granados Benitez is a citizen of Honduras who entered the United States in 2010 without being lawfully admitted or paroled. His wife and five-year-old daughter are US citizens. Granados Benitez says his wife suffers from a medical condition which prevents her from working and so he was the sole source of income for his family at least until his detention. In a letter,
On November 29, 2018, the Department of Homeland Security (“DHS“) issued Granados Benitez a Notice to Appear, charging him with removability for being present in the United States without being lawfully admitted or paroled. DHS began removal proceedings against him on December 6, 2018. Granados Benitez admitted the factual allegations in the Notice to Appear, but applied for asylum and protection under the Convention Against Torture.2 The IJ found his claims credible, but nonetheless
While Granados Benitez‘s removal proceedings were ongoing, he filed a separate application to USCIS for a U visa.3
To promote greater cooperation with law enforcement, Congress passed the VTVPA, which permits USCIS to issue up to 10,000 U visas each fiscal year to aliens without legal status who are victims of a qualifying crime and substantially assist law enforcement in the investigation and prosecution of the offense.
two protected grounds: (1) his Catholicism, and (2) his family unit. He said he had been repeatedly pressured by relatives and others to join narco-trafficking activities, which his religious beliefs prevented him from doing. He testified to the IJ that when he was fourteen, police officers associated with drug traffickers had beaten him with the butt of a rifle for refusing to transport drugs and that he had been hospitalized as a result of his injuries. On other occasions his cousins had mocked him for refusing to participate in drug-trafficking activities.
Because of the statutory cap, many people who are otherwise eligible to receive a U visa in a given fiscal year are unable to do so.
At the end of 2019, there were nearly 152,000 pending principal [U visa] petitions and nearly 104,000 pending petitions for family members. Because the number of individuals issued principal [U visas] or provided principal U-1 nonimmigrant status in any fiscal year cannot exceed 10,000, the wait time for a principal petitioner to receive a final decision (and status, if approved) is currently 5-10 years . . . .
On June 12, 2017, Granados Benitez was the victim of an armed robbery near his home in Island Park, New York.5 As defined by New York law, armed robbery is a qualifying offense under the VTVPA. See
On September 23, 2019, USCIS sent Granados Benitez a letter stating:
At this time, the evidence submitted with your petition appears to demonstrate that you have established the eligibility requirements for U nonimmigrant status. However, the statutory cap for U-1 nonimmigrant status has been reached for this fiscal year. . . . As the fiscal year limit is the sole reason you cannot be granted U-1 nonimmigrant status, your petition is being placed on a waiting list. (Emphasis added.)
USCIS also granted Granados Benitez deferred action, meaning that it would not attempt to proceed with deportation proceedings until it revoked the deferred action protection. See Lopez-Reyes v. Gonzales, 496 F.3d 20, 22 (1st Cir. 2007). The information about Granados Benitez‘s USCIS petition was not available to the IJ at Granados Benitez‘s initial merits hearing, or to the Board in Granados Benitez‘s appeal because Granados Benitez did not receive his waitlist determination until the appeal was under consideration.
On November 12, 2019, Granados Benitez timely filed with the BIA a “Motion to Reopen and Remand Case” to the IJ based on his USCIS waitlist letter. He requested “that his case be reopened and [the] removal order vacated in light of a grant of deferred action from [USCIS] because [Granados Benitez] has demonstrated
On April 30, 2020, the BIA issued a decision, captioned “APPLICATION: Reopening; stay; voluntary departure.” It stated that “under the circumstances presented with the motion, we do not find that reopening of these proceedings is appropriate.” The BIA ordered that “[t]he motion and stay request are denied.” It gave two reasons for its denial of the portion of Granados Benitez‘s motion relating to his U visa application. First, the BIA claimed it could only reopen Granados Benitez‘s case if the U visa was granted. It stated, “[t]he regulations permit an alien to file a motion to reopen and terminate proceedings upon approval of U nonimmigrant status. . . . In this case, the respondent has not been approved for U nonimmigrant status.” It purported to rely on language in
[When an application for a U visa is granted] [a] petitioner who is subject to an order of exclusion, deportation, or removal issued by
an immigration judge or the Board may seek cancellation of such order by filing, with the immigration judge or the Board, a motion to reopen and terminate removal proceedings.
Second, the BIA weighed the fact that Granados Benitez could pursue his U visa application in spite of the removal order. It stated, “[Granados Benitez] is not precluded from obtaining a U visa from the USCIS despite being the subject of a final order of removal,” and it claimed he could “file a new motion to reopen and terminate proceedings” if and when USCIS issued him a U visa. The BIA also rejected Granados Benitez‘s other grounds for reopening and remand.
On May 29, 2020, Granados Benitez timely petitioned this court for review of the BIA‘s denial of his motion to reopen.
II.
A. Standard of Review.
This court reviews the BIA‘s denial of a motion to reopen for abuse of discretion. Smith v. Holder, 627 F.3d 427, 433 (1st Cir. 2010). “The BIA has broad discretion, conferred by the Attorney General, to grant or deny a motion to reopen.” Id. (internal quotation marks omitted) (quoting Kucana v. Holder, 558 U.S. 233, 250 (2010)). To demonstrate an abuse of discretion “the complaining party” must “show that the BIA committed an error of law or exercised its judgment in an arbitrary, capricious, or irrational way.” Shah v. Holder, 758 F.3d 32, 36 (1st Cir. 2014)
B. Analysis.
We conclude that the Board has abused its discretion in this case because it failed to follow its own precedents, persuasive circuit law, and DHS policies in denying Granados Benitez‘s motion to reopen and remand to the IJ. Further, the Board failed to address ICE Directive 11005.2: Stay of Removal Requests and Removal Proceedings Involving U Nonimmigrant Status (U Visa) Petitioners. Finally, we reject the Board‘s argument –- raised for the first time at oral argument –- that the appropriate remedy for a finding of abuse of discretion is remand to the Board,
To prevail on a motion to reopen before the BIA, the movant must show “new, material evidence that was not available or discoverable at the prior hearing and must also present a prima facie case of eligibility for the relief sought.” Jutus v. Holder, 723 F.3d 105, 110 (1st Cir. 2013) (first citing Fesseha v. Ashcroft, 333 F.3d 13, 20 (1st Cir. 2003); and then citing
The BIA does not dispute that Granados Benitez raised new evidence not available at his merits hearing by presenting the fact that he had been added to the U visa waitlist.
Rather, the Board states Granados Benitez did not show that he was prima facie eligible for the relief he sought: in this case, remand and temporary relief from his removal proceedings based on the U visa waitlist determination. But it is the IJ who customarily grants a continuance, and so Granados Benitez explicitly asked for the appropriate relief from the Board: reopening the proceedings and remanding to the IJ for consideration of further relief. In concluding that Granados Benitez was not eligible for that relief, the Board noted that his visa petition was “only pending,” that he was ineligible for a status adjustment
In light of the fact that the motion filed by Granados Benitez is a motion to reopen and seek a continuance from the IJ, we conclude the Board abused its discretion. It abused its discretion by failing to conduct a proper analysis, failing to consider its own policies and precedents, and ignoring the position of its sister agency, ICE. The Board did not analyze whether Granados Benitez made out a prima facie case for a continuance under the appropriate standard.
The current standard set by the Board for a continuance in light of a U visa application is well settled. On remand from the Ninth Circuit, the Board in Matter of Sanchez Sosa, 25 I. & N. Dec. 807 (B.I.A. 2012), set out the three factors IJs should consider in ruling on such a motion. These are: “(1) the DHS‘s response to the motion; (2) whether the underlying visa petition is prima facie approvable; and (3) the reason for the continuance and other procedural factors.” Id. at 812-13. The BIA also stated, “[a]s a general rule, there is a rebuttable presumption that an alien who has filed a prima facie approvable [U visa] application with the USCIS will warrant a favorable exercise of discretion for a continuance for a reasonable period of time.” Id. at 815.
Decisions from other circuits further support our view that the Board must follow the Sanchez Sosa framework, or explain its reasons for applying a different standard. This court has not previously considered the issue. But the Seventh Circuit found the Board abused its discretion by denying a motion to remand removal proceedings to the IJ for consideration of a motion to
The Board itself has also found that a U visa waitlist determination warranted reopening and remand, using the Sanchez Sosa standard, in at least two unpublished decisions. In In re
We conclude that Sanchez Sosa remains the applicable standard for considering whether a continuance is likely to be available. In this case, the Board did not even cite to that standard. Rather, it mischaracterized Granados Benitez‘s request as a motion to reopen and terminate proceedings, and denied his application under the standard for that different motion. In doing so it “inexplicably departed from established policies,” Leblanc,
The Board‘s arguments in response are meritless. Before this court, the Board again mischaracterizes Granados Benitez‘s motion to reopen and remand as a motion to reopen and terminate. On that basis, it argues that the Board properly applied
The Board also claims Guerra Rocha, 951 F.3d at 851, and Cortes-Gomez v. Barr, 765 Fed. App‘x 593, 595-96 (2d Cir. 2019), are distinguishable because in those cases the petitioners raised their motions to remand during their appeals to the Board when there was not yet a final order of removal, instead of during a post-appeal motion after a final order of removal had been issued. But the Board points to no case law that indicates that post-appeal motions to reopen are subject to a different standard. And the Board has applied the same Sanchez Sosa standard to post-appeal motions to reopen in its unpublished decisions. See Ramirez-Rios, 2016 WL 1084499, at *1; Rosales De La Cruz, 2016 WL 946691, at *1.
The Directive states:
[I]t is ICE policy to respect USCIS‘s grant of deferred action to a U visa petitioner. Accordingly, ICE will not remove a U visa petitioner or qualifying family member whom USCIS has placed on the waiting list and granted deferred action unless a new basis for removal has arisen since the date of the waiting list placement or USCIS terminates deferred action.
U.S. Immigr. & Customs Enf‘t, ICE Directive 11005.2: Stay of Removal Requests and Removal Proceedings Involving U Nonimmigrant Status (U Visa) Petitioners § 2 (2019) (“ICE Directive 11005.2“). The Directive defines a “[U visa] Waiting List Determination” as “[a] USCIS decision on a U visa petition that is the functional equivalent of a full adjudication on the merits of the petition.” Id. at § 3.5 (emphasis added). It states “[a] petitioner is placed on the waiting list when, due solely to the statutory cap, a U-1 nonimmigrant visa is not currently available.” Id. The Directive further states, “[i]n cases involving pending U visa
USCIS and ICE are responsible for the administration of immigration services and the enforcement of immigration laws, respectively. See Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135. USCIS has granted Granados Benitez deferred action because of his U visa waitlist status. Directive 11005.2 states that ICE policy is to defer to that determination. Independently, ICE recognizes that U visa waitlist status entitles some aliens to relief from removal proceedings in appropriate circumstances. The Board correctly argues that it is not bound by ICE‘s guidance, which by its own terms applies only to that agency. ICE Directive 11005.2 § 3. But the fact that two agencies within DHS, which are responsible for administering the bulk of immigration laws, agree with Granados Benitez that U visa waitlist status entitles him to relief from removal proceedings is at least a “significant factor” that should weigh on the Board‘s analysis of that issue. See Murillo-Robles, 839 F.3d at 91 (quoting Henry, 74 F.3d at 4). Again, the Board does not even purport to have considered this issue in denying Granados Benitez‘s motion, even though he expressly raised the issue in his motion. Here, too, the Board “neglect[ed] to consider a significant factor” in
The Board‘s remaining arguments are also meritless. It states that Granados Benitez failed to exhaust any claim that he would be entitled to a continuance from the IJ under Sanchez Sosa because he did not raise that argument in his brief to the Board. We disagree. “The purpose of [the administrative exhaustion] requirement is to prevent the courts from usurping the agency‘s functions and to ‘allow[] the agency the first opportunity to correct its own bevues.‘” Meng Hua Wan v. Holder, 776 F.3d 52, 56 (1st Cir. 2015) (alteration in original) (quoting Mazariegos-Paiz v. Holder, 734 F.3d 57, 63 (1st Cir. 2013)). Here, the IJ has the power to grant a continuance. See
The Board also argues that it left open the possibility that Granados Benitez could refile his motion to reopen once USCIS formally approved his application for a U visa, so Granados Benitez has not exhausted his administrative remedies because he could get relief in some future proceeding. Again, we disagree. The fact
At oral argument, the Board also argued for the first time that if this court were to find that its denial of the motion to reopen was an abuse of discretion, this matter should be remanded to the Board without instructions to remand to the IJ. Counsel stated that the Board may wish to “provide guidance” to the IJ as to how the Sanchez Sosa factors apply. The Board has provided us with no reason to do what it newly argues.
III.
Accordingly, we grant the petition. The decision of the Board is vacated and this matter is remitted to the Board with directions that the Board grant the motion to reopen and remand the case to the IJ for further proceedings consistent with this opinion.