Matter of Safraz KHAN, Respondent
U.S. Department of Justice, Executive Office for Immigration Review, Board of Immigration Appeals
Decided September 8, 2016
26 I&N Dec. 797 (BIA 2016)
Interim Decision #3870
FOR RESPONDENT: Antonio Bugge, Esquire, Fort Lauderdale, Florida
FOR THE DEPARTMENT OF HOMELAND SECURITY: Lois B. Agronick, Associate Legal Advisor
BEFORE: Board Panel: MALPHRUS, MULLANE, and CREPPY, Board Members.
CREPPY, Board Member:
In a decision dated February 19, 2015, an Immigration Judge concluded that she had concurrent jurisdiction to adjudicate the respondent‘s request for a waiver of inadmissibility under
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Guyana who was admitted to the United States as a lawful permanent resident on May 25, 1992. On March 11, 2008, he was convicted of attempted lewd or lascivious battery, computer pornography and child exploitation, and transmission of harmful material to a minor in violation of sections 800.04(4)(a), 847.0135(3), and 847.0138(2) of the Florida Statutes, respectively. The respondent was
The Immigration Judge sustained the charge of removability. The respondent did not request relief from removal before the Immigration Judge. Instead, he sought a waiver in conjunction with his visa petition for U nonimmigrant status under
On August 14, 2013, we declined to exercise jurisdiction over the interlocutory appeal and returned the record to the Immigration Court without further action. The USCIS denied both the visa petition and the waiver request on December 17, 2014. The respondent‘s case was subsequently recalendared, and he requested a waiver of inadmissibility under
The Immigration Judge acknowledged that the USCIS had exclusive jurisdiction over petitions for U nonimmigrant status but found that she had concurrent jurisdiction to adjudicate the respondent‘s request for a section 212(d)(3)(A)(ii) waiver. In reaching that conclusion, the Immigration Judge relied on Matter of Sanchez Sosa, 25 I&N Dec. 807 (BIA 2012), and L.D.G. v. Holder, 744 F.3d 1022 (7th Cir. 2014), a decision of the United States Court of Appeals for the Seventh Circuit.2 She then applied the analytical framework set forth in Matter of Hranka, 16 I&N Dec. 491 (BIA 1978), and concluded that the respondent did not satisfy his burden of establishing that he merited a grant of the waiver in the exercise of discretion.
The question before us is whether an Immigration Judge has authority to adjudicate a request for a waiver of inadmissibility under
III. ANALYSIS
A. USCIS Jurisdiction Over Petitions for U Nonimmigrant Status and Requests for Waivers of Inadmissibility
The petitioning and application procedures for U visas under the Act and the regulations reflect that the USCIS has exclusive jurisdiction over petitions for U nonimmigrant status under
Only petitioners who are admissible to the United States or who have been granted a waiver of inadmissibility by the USCIS are eligible for
In order to apply for such a waiver, a petitioner must file a Form I-192 as part of the evidentiary package submitted to the USCIS.
B. Limited Authority of Immigration Judges To Adjudicate Waivers of Inadmissibility Under Section 212(d)(3)(A)(ii) of the Act
The waiver of inadmissibility under section 212(d)(3)(A) of the Act is a general waiver that authorizes the temporary admission of nonimmigrant aliens applying for advance permission to enter the United States in the discretion of the Attorney General. An alien who is seeking admission may apply for the waiver at a port of entry or a preclearance office designated by the United States Customs and Border Protection (“CBP“) pursuant to
The respondent argues that since the Attorney General has jurisdiction to grant a section 212(d)(3)(A)(ii) waiver, the Immigration Judges also implicitly have such authority with regard to U visas. In support of this argument, he relies on L.D.G., 744 F.3d at 1030-31, where the Seventh Circuit concluded that Congress did not preclude petitioners for U nonimmigrant status from requesting that the Attorney General grant a section 212(d)(3)(A)(ii) waiver, which has generally been available to nonimmigrants before and after the enactment of sections 101(a)(15)(U) and 212(d)(14) of the Act. Consequently, the court held that Immigration Judges have jurisdiction to grant the waiver to a U visa applicant. Id. at 1031. However, it is not clear that Congress would have intended for the Attorney General to have jurisdiction over these waivers to accord U nonimmigrant status once it gave the DHS exclusive jurisdiction over U visas.
As discussed above, when Congress created the U nonimmigrant visa, it also enacted section 212(d)(14) of the Act, which provided a specific waiver of inadmissibility for petitioners for U nonimmigrant status, and this waiver now falls within the exclusive jurisdiction of the DHS. The legislative intent as to the interplay between the waivers in section 212(d)(3)(A)(ii) and section 212(d)(14) is unclear. The language of section 212(d)(3)(A)(ii) that refers to the Attorney General currently provides a general waiver of inadmissibility for certain qualifying nonimmigrant aliens. However, even if the Attorney General has this waiver authority regarding U visas, we cannot conclude that such authority extends to Immigration Judges without taking the governing regulations and the authority of Immigration Judges into account.
The Attorney General has delegated limited authority to Immigration Judges to adjudicate a section 212(d)(3)(A)(ii) waiver request pursuant to
If the application is made at the time of the applicant‘s arrival to the district director at a port of entry, the applicant shall establish that he was not aware of the ground of inadmissibility and that it could not have been ascertained by the exercise of reasonable diligence, and he shall be in possession of a passport and visa, if required, or have been granted a waiver thereof. . . . If denied, the denial shall be without prejudice to renewal of the application in the course of proceedings before [an Immigration Judge] . . . .6
These regulations are consistent with
Both before and after Congress’ enactment of the U visa statutory provisions, we have held that the Immigration Judge‘s authority to grant a section 212(d)(3)(A)(ii) waiver is limited to when an inadmissible nonimmigrant alien seeking admission at a port of entry has been denied a waiver and has been placed in exclusion or removal proceedings where a waiver request has been renewed before the Immigration Judge. See Matter of Kazemi, 19 I&N Dec. 49, 52 (BIA 1984) (discussing the limited jurisdiction of Immigration Judges and the Board to consider a renewed request for a waiver by an alien in exclusion proceedings following denial of the waiver by the district director at a port of entry); see also Matter of Fueyo, 20 I&N Dec. 84, 86-87 (BIA 1989). Since a petitioner for
Contrary to the Seventh Circuit‘s interpretation, the powers and duties of Immigration Judges to conduct removal hearings under section 240 of the Act,
We conclude that the regulations do not give Immigration Judges authority to grant a waiver of inadmissibility under section 212(d)(3)(A)(ii) of the Act to a petitioner for U nonimmigrant status who is in the United States. We find support for our conclusion in the Third Circuit‘s recent precedent, which analyzed this issue and reached a contrary result from L.D.G. Sina Sunday v. Att‘y Gen. of U.S., No. 15-1232, 2016 WL 4073270, at *3-5 (3d Cir. Aug. 1, 2016). There, the court concluded that an Immigration Judge‘s authority to consider a section 212(d)(3)(A)(ii) waiver was limited to only those instances where the alien first applied for admission to a district director prior to entry, and not to an alien who was admitted into the United States and now seeks a waiver of inadmissibility from an Immigration Judge so that he can petition for a U visa.
Moreover, we presume that when Congress enacted section 212(d)(14) of the Act, it was aware that a waiver of inadmissibility under section 212(d)(3)(A)(ii) was unavailable to a petitioner for U nonimmigrant status in the United States. Congress therefore provided a much broader waiver that (1) does not statutorily require a petitioner for U nonimmigrant status to be in possession of a valid entry document and (2) only requires that the petitioner not be otherwise inadmissible under section 212(a)(3)(E) of the Act on the basis of Nazi persecution, genocide, or the commission of tortuous acts or extrajudicial killings. Further, the language of section
We are also not persuaded by the rationale in L.D.G., 744 F.3d at 1031-32, that giving Immigration Judges the authority to grant a section 212(d)(3)(A)(ii) waiver to an applicant for U nonimmigrant status would promote efficiency in the administration of the immigration system. Immigration Judges only address matters falling within the scope of their jurisdiction to resolve contested issues in removal proceedings—not collateral matters. See Matter of Yauri, 25 I&N Dec. 103, 110 (BIA 2009) (“As a practical matter, Immigration Judges and the Board have limited and finite adjudicative and administrative resources, and those resources are best allocated to matters over which we do have jurisdiction.“); cf. Matter of Aceijas-Quiroz, 26 I&N Dec. 294, 299 (BIA 2014) (declining to review legal issues underlying matters over which the DHS has sole and unreviewable discretion).
Even if the Immigration Judge had granted the respondent‘s section 212(d)(3)(A)(ii) waiver request, which necessarily requires a determination of inadmissibility as part of the ultimate exercise of discretion that is clearly assigned to the USCIS, that would not have allowed her to resolve the respondent‘s removability. Rather, the respondent would have been required to re-file a petition for U nonimmigrant status with the USCIS and await its adjudication. This would not result in a harmonious statutory scheme. See Matter of C-T-L-, 25 I&N Dec. 341, 347 (BIA 2010) (stating that adopting two different standards would be unharmonious and asymmetrical) (citing Food and Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000), and Matter of Moncada, 24 I&N Dec. 62, 65 (BIA 2007)). Therefore, we disagree with the Seventh Circuit‘s interpretation in L.D.G., 744 F.3d at 1030-31, that section 212(d)(3)(A) of the Act permits Immigration Judges to waive the inadmissibility of U nonimmigrant visa applicants like the petitioner in that case.
Upon review of L.D.G., we respectfully conclude that the totality of the Seventh Circuit‘s analysis did not expressly determine that the language in section 212(d)(3)(A)(ii) of the Act was unambiguous. We recognize that the Seventh Circuit stated that “we see that the plain language of section [212(d)(3)(A)] grants to the Attorney General authority to waive the inadmissibility of ‘an alien’ applying for a temporary nonimmigrant visa,” and absent any limitation, it “permits the Attorney General to waive the inadmissibility of U Visa applicants like L.D.G.” L.D.G., 744 F.3d at 1030. However, the court went on to discuss the interplay between different waiver provisions and stated that the statutory scheme for considering a
The Supreme Court has held that a circuit court must accord deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), to an agency‘s interpretation of a statute, regardless of the circuit court‘s contrary precedent, unless the prior court decision holds that the construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion. Nat‘l Cable & Telecomms. Ass‘n v. Brand X Internet Servs. (”Brand X“), 545 U.S. 967, 982-85 (2005); see also Holder v. Martinez Gutierrez, 132 S. Ct. 2011, 2017-21 (2012); Matter of M-H-, 26 I&N Dec. 46, 49 (BIA 2012).
Based on the totality of the court‘s analysis, we conclude that the Seventh Circuit did not expressly find the language of section 212(d)(3)(A) to be unambiguous, which would leave no room for agency discretion. See Brand X, 545 U.S. at 982; Matter of M-H-, 26 I&N Dec. at 49. Accordingly, we will respectfully apply our ruling in this decision to cases nationwide, including cases arising in the Seventh Circuit, in order to promote national uniformity in the interpretation of immigration law.
IV. CONCLUSION
We conclude that Immigration Judges do not have authority to adjudicate a request for a waiver of inadmissibility under section 212(d)(3)(A)(ii) of the Act by a petitioner for U nonimmigrant status. Therefore the Immigration Judge erred in adjudicating the respondent‘s waiver request. Accordingly, the respondent‘s appeal will be dismissed.
ORDER: The appeal is dismissed.
Notes
This waiver was previously at former section 212(d)(3)(B) of the Act,Except as provided in this subsection, an alien
. . .
(ii) who is inadmissible under section (a) (other than paragraphs (3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C) and clauses (i) and (ii) of paragraph (3)(E) of such subsection), but who is in possession of appropriate documents or is granted a waiver thereof and is seeking admission, may be admitted into the United States temporarily as a nonimmigrant in the discretion of the Attorney General. The Attorney General shall prescribe conditions, including exaction of such bonds as may be necessary, to control and regulate the admission and return of inadmissible aliens applying for temporary admission under this paragraph.
The Secretary of Homeland Security shall determine whether a ground of inadmissibility exists with respect to a nonimmigrant described in section 101(a)(15)(U). The Secretary of Homeland Security, in the Secretary of Homeland Security‘s discretion, may waive the application of subsection (a) (other than paragraph (3)(E)) in the case of a nonimmigrant described in section 101(a)(15)(U), if the Secretary of Homeland Security considers it to be in the public or national interest to do so.