L. D. G. v. Eric Holder, Jr., 744 F.3d 1022

Case Information

Before W OOD Chief Judge , K ANNE H AMILTON , Circuit Judges .

W OOD Chief Judge . This petition review final der removal brought L.D.G., victim serious crime also convicted more mundane one. When L.D.G. applied forestall her impending from States, Citizenship Immigration Services (USCIS) refused waive her stat utory stemming her uninspected entry No. and prior drug conviction. Facing certain removal, she asked Immigration Judge (IJ) presiding over her pro ‐ ceedings to determine independently whether to waive her inadmissibility. The IJ declined and alone jurisdiction to provide such waiver. The of Im migration Appeals affirmed. We must now decide whether correctly declined jurisdiction, or Congress cre ated concurrent both Depart ment of Justice and Department of Homeland Security may grant of to U Visa applicants who qualify them.

I begin bit background about labyrinthine statutory structure lies behind appeal. Congress created U Visa part Victims Trafficking Violence Protection Act See Pub. L. 386, Stat. (2000). Visas allow victims certain statuto rily designated crimes who have suffered “substantial phys ical mental abuse,” have been or are likely helpful authorities investigating prosecuting crime, remain States lawful temporary residents despite being otherwise subject removal. See §§ 1101(a)(15)(U), 1184(p). provision designed encourage noncitizen crime victims come forward help law enforcement investigate prosecute their victim izers without fear deportation. New Classification Victims Criminal Activity; Eligibility “U” Nonimmi grant Status, Fed. Reg. 53014–15 (Sept. Visas automatically qualifying noncitizens. decision whether statu torily committed discretion Secretary Home ‐ land Security, see U.S.C. § 1101(a)(15)(U), and is exercised through USCIS, an office within the Department Home ‐ land Security (DHS) successor now ‐ defunct Immigration Naturalization Service. The number Visas can issued annually is capped at 10,000, see U.S.C. § 1184(p)(2)(A), USCIS filled quota every year since it began issuing visas 2008. News Re ‐ lease, Citizenship & Immigration Services, Ap ‐ proves 10,000 Visas for 5th Straight Fiscal Year (Dec. 2013), available http://www.uscis.gov/news/alerts/uscis ‐ approves u ‐ visas ‐ 5th ‐ straight ‐ fiscal ‐ year. allow ance fills quickly: for fiscal year it reached De cember Id.

Further complications arise for noncitizens who admissible United States U.S.C. 1182(a) they apply for Visa. At point, is important understand conceptual difference between inadmissibil ity removability. Removability relatively straightfor ward: noncitizen eligible for removal is, term implies, potentially subject removal proceedings (once called deportation proceedings for people within States). DHS initiates removal process. It pursues an administrative proceeding within Executive Of fice Immigration Review (EOIR), arm Depart ment Justice (DOJ). removal proceeding first heard IJ, possibility appeal Immi gration Appeals (Board); petition review final order can brought court appeals circuit IJ’s hearing took place, see 1252(a)(5), (b)(2), unless another statutory provision inde pendently makes unreviewable. Inadmissibility slightly different, although grounds removability 1011 inadmissibility generally overlap noncitizens who en ‐ tered without inspection. The statute defines “inadmissi ble” classes of aliens ineligible visas or ad mission United States. U.S.C. § 1182(a). As a practical matter, inadmissible alien eligible seek any of number of statutory “outs” allow a person remain lawfully in States, such adjustment of status permanent resident U.S.C. § or nonimmigrant visa (of visa just one example). An inadmissible alien may, however, become eligible some of these forms of relief if she successfully obtains of through one of mechanisms U.S.C. 1182(d).

One section in particular of interest here; always available potential applicants need of waiver: Secretary of Homeland Security shall de

termine whether ground exists with respect nonimmigrant de scribed section 1101(a)(15)(U) this title [governing Visas]. Secretary Home land Security, General’s [ sic ] discretion, may waive application sub (a) this section … case nonimmigrant described 1101(a)(15)(U) this title, Secretary Homeland Security considers public national interest do so. Though statute mentions “At

torney General’s discretion,” appears codifier’s error. Legislation amending statute replaced “At torney General” “Secretary Homeland Security” eve 5 No. 13 ‐ 1011 rywhere appeared this section, and so persistence of reference Attorney General is likely inadvertent holdover original version of U Visa statute. See Violence Against Women and Department of Justice Reau ‐ thorization Act of 2005, Pub. L. No. 109 ‐ 162, 119 Stat. 2960 (Jan. 5,

When U Visas were first created, discretion both visas themselves and section 1182(d)(14) waivers of was vested General. See Vic ‐ tims of Trafficking and Violence Protection Act, 114 Stat. The passage of statute, however, predated crea tion Department Homeland Security. Primary re sponsibility granting denying both visas and (d)(14) transferred DHS 2006, before any visas were issued. Emergency Supplemental Appropria tions Act Defense, Global War Terror, Tsu nami Relief, Pub. L. No. 13, Stat. (May 11, 2005) (section 1182(d) waivers); Violence Against Women De partment Justice Reauthorization Act 2005, Pub. L. 162, Stat. (Jan. 5, 2006) (U Visas). DHS regula tions regarding issuance Visas completed see Fed. Reg. 53014, first Visa is sued see News Release, supra .

Our description mechanics obtaining up this point is generally uncontested. plot thickens, however, one realizes there is separate provision 1182(d)(3)(A), reads follows:

[A]n alien … who inadmissible sub (a) … but pos session appropriate documents thereof seeking admission, may ‐ admitted to the United States temporarily nonimmigrant in discretion the Attor ney General.

This provision L.D.G. seeks to invoke.

Statutory references to “Attorney General” include EOIR (where both IJs and reside), which component Department Justice. Cf. , e.g. , In re H ‐ N , I. & N. Dec. 1039, (B.I.A. 1999). have interpreted 1182(d)(3)(A) permit IJ waive nonimmigrant. See, e.g. Atunnise Mukasey F.3d 830, (7th Cir. L.D.G.’s petition requires us de cide whether retains power noncitizen seeks in obtain Visa, despite more targeted provision in With background mind, ready turn facts petitioner’s case.

II L.D.G. and her husband entered States

Mexico without inspection 1987. They first settled Cali fornia, where they built comfortable life four citizen children. In family moved Illinois der support L.D.G.’s brother ‐ ‐ law, struggling with drug problem. In January family purchased began operate restaurant, accounts did fairly well during its first seven months. family members’ lives changed dramatically one day August A group armed men entered restau

rant kidnapped L.D.G. her family, along one restaurant’s employees customer. assailants looking L.D.G.’s brother law. When family could provide information about his whereabouts, they were bound and blindfolded, and threatened with death and sexual assault. The hostages were taken to a private resi dence in another town, where kidnappers sexually saulted L.D.G’s teenage daughter and severely beat her hus band. family was rescued only when police officers ar rived several hours later. L.D.G. and her family assisted po lice in subsequent investigation and prosecution their kidnappers. family was too frightened return to restaurant

business wake these events. Lacking stable source income, they fell on hard times. L.D.G.’s husband ulti mately made ill fated decision enter drug trade support family, fact L.D.G. maintains she learned police pulled her over June and searched her car drugs. She later discovered police executed search warrant her home same day two kilograms cocaine garage. She her husband arrested charged with possession controlled substance intent deliver. L.D.G. maintains her innocence day, but she accepted plea deal carry ing sentence probation time served order re turn her children. Her husband sentenced five years state prison, where he remains incarcerated.

In November DHS initiated proceedings against L.D.G. 1182(a)(6)(A)(i), makes removable noncitizen present States without having been admitted paroled. She initially sought continuance her immigration case pursue Visa. After receiving her applica tion, identified additional reasons why she should found inadmissible: her conviction crime involving moral turpitude, U.S.C. § 1182(a)(2)(A)(i)(I); her conviction controlled substance crime, id. § 1182(a)(2)(A)(i)(II); and her status person “the General knows or reason believe … has been illicit trafficker any controlled substance,” id. § 1182(a)(2)(C). agency declined waive her inadmissibility, without waiver her U Visa application was denied matter course. USCIS reopened reconsidered waiver matter May on L.D.G.’s motion, but again denied waiver that September. L.D.G. then filed administrative appeal (with DHS) decision, which was available her under statute place time; that appeal still pending.

Meanwhile, L.D.G.’s immigration proceedings—which continued four times while she pursued waiver USCIS—resumed immigration court after issued its final denial September 2010. Her hear ing took place March There she conceded that she was removable ineligible cancellation that re moval. U.S.C. § 1229b. She urged IJ, however, consider anew her application waiver so that she could continue her pursuit Visa. She ar gued IJ independent concurrent jurisdiction grant such 1182(d)(3)(A), such jurisdiction unaffected USCIS’s recent de nial her application She also clarified she asking direct review her application itself, but application. he lacked re lief. He looked first DHS regulations governing Vi sas, particular C.F.R. 214.14(c)(1), states, “USCIS 9 sole jurisdiction over petitions for nonimmigrant status.” He also noted that regulation establishing USCIS’s procedure handling waiver applications, C.F.R. § 212.17, placed granting within USCIS’s discretion. See id. § 212.17(b). He concluded that Illegal Immigration Reform Immigrant Responsibilities Act September 1996, “specifically eliminate[d] Im migration Court jurisdiction over non immigrant admissions aliens seeking Section 212(d)(3) [8 U.S.C. § 1182(d)(3)] waivers.” Board adopted IJ’s reasoning affirmed on

appeal. It matter controlled C.F.R. § 212.17, read “specify[ing] that waiver conjunction visa exclusively within jurisdiction De partment Homeland Security.” Believing that L.D.G. was applying retroactive because was her illegal entry led inadmissibility, Board relied this court’s holding Borrego Mukasey F.3d (7th Cir. 2008), effect 1182(d)(3) cannot retroactively immigration proceedings. Noting L.D.G. denied initial opportunity seek 1182(d)(14) USCIS, concluded without jurisdiction dismissed appeal. L.D.G. then filed timely petition review. U.S.C. §

III Though we do have jurisdiction review discretion ary decisions General Secretary Homeland Security, 1252(a)(2)(B)(ii), do have over questions law raised petition re view, see id. 1252(a)(2)(D). review de novo Board’s ‐ legal conclusions, well as those the insofar as the adopted them. Kiorkis Holder , F.3d (7th Cir.

Before turning main event, must take care preliminary matter: Board’s impression L.D.G. was pursuing retroactive waiver That is not correct. relief she seeks is entirely forward looking. comparison Borrego is therefore inapposite, although contrasting cases useful for illustrating Board’s error. In Borrego , petitioner earlier occasion been caught using fake name at border while at tempting enter States, result she was barred from entering country five years. F.3d at 689–90. Despite bar, she successfully obtained B (tourist) visa her own name less than four years later. When she was out put proceedings, she sought retroactive waiver 1182(d)(3)(A) seek adjustment status. Id. at Her B visa was facially invalid; could revived only her admissibility was waived retroactively which would have made her eligible receive visa four years earlier.

L.D.G.’s situation quite different. Unlike petitioner Borrego L.D.G. does not yet have visa. She seeks her grounds inadmissibility gain eligibility future. Waivers necessarily relieve applicants effects past conduct, but does not make themselves retroactive. A retroactive works salvage relief previously ed applicant qualified, thus void outset. L.D.G., contrast, obtained any relief all. She seeking 11 13 1011 qualify new Visa. Borrego presents no barrier the IJ’s providing this relief.

With settled, turn central question present ‐ ed: whether had jurisdiction consider un der 1182(d)(3)(A).

IV For complexities immigration statutes, decisions immigration courts administrative deci sions, government suggests our analysis would be aided by applying well settled administrative law principles. government sees appropriate case con siderable deference owed agencies’ interpretations their own regulations called by Auer v. Robbins , 519 U.S. 452, (1997). It argues Board’s determination exclusive consider admissibility predicate Visas just interpretation regulation at C.F.R. §§ 214.14, 212.17. If government were correct, Board’s interpretation would controlling unless “plainly erroneous or consistent regulation.” Auer U.S. (quot ing Robertson v. Methow Valley Citizens Council, (1989)).

But government’s argument slides past some im portant details, taken together make Board’s terpretation poor candidate Auer deference twice over. First, most basic requirement—that agency inter preting its own (ambiguous) regulation—is missing here. Christopher Smithkline Beecham Corp. S. Ct. (2012). Sections 214.14 212.17 promulgated DHS. part DOJ. There no rule, Auer 13 1011 elsewhere, that encourages or compels courts defer an agency’s interpretation a different agency’s regulations, decline invent one here.

Second, even if deference extended sister agencies, is due only if an interpretation is not plainly erroneous or consistent with regulation. Interpretations are flatly at odds with language regulation cannot be fol lowed, because “an agency cannot by regulation contradict statute, but only supplement it.” Keys v. Barnhart F.3d (7th Cir. Moreover, flat contradiction is not way which an inconsistency can arise. Interpreta tions can also objectionable they unduly restrict plain language set forth regulation, see Joseph Hold er F.3d 833–34 (7th Cir. 2009), or because agen cy’s stated position is fact an “interpretation” regulation all. The latter is case here: regulations at issue (8 C.F.R. §§ 214.14, 212.17) silent question whether USCIS’s jurisdiction over waivers predicate Visas is exclusive. regulations give sole jurisdiction provide Visas themselves, C.F.R. § 214.14(c)(1), but neither important here nor surprise: exclusivity mandated by § 1101(a)(15)(U), separate matter over inadmissibility. regulations also estab lish procedures applicant must submit petition, C.F.R. 212.17, requirements obtaining visa, C.F.R. 214.14(c). have no reason question validity these provisions, but again, they have nothing do with whether may 1182(d)(3)(A) would allow petitioner obtain Visa. To consistent regulation, agency’s “interpretation” must actually ‐ construe provisions of that regulation; enough to identify regulation that addresses an associated matter tack on requirements are conjured from thin air. Other wise Auer deference would be means agencies to ac complish end run around notice ‐ comment rulemak ing by calling their new rules “interpretations” old ones. deference owed to Board’s interpretation relevant regulations may be unimportant any event. Any interpretation would still need to be consistent stat ute. From point view, might consider whether DHS regulations, interpreted Board, entitled to deference Chevron U.S.A., Inc. v. Natural Resources De fense Council, Inc. , U.S. (1984). first question would be whether Congress unambiguously expressed its intent matter. If answer were yes, would end things. If no, next question would whether agency’s construction permissible inter pretation statute. Id. 842–43. need pursue further, however, because DHS has no authority promulgate regulation purporting define IJ’s juris diction. More generally, there nothing either 1101(a)(15)(U) 1182(d) suggest Congress intended delegate DHS authority determine agency empowered consider waivers necessary different forms immigration relief. Any attempt read such delegation into Congress’s silence would fail want intelligible principle guide agency’s discre tion. See, e.g. Loving States (1996). Accordingly, DHS has exclusive over applicants, exclusivity must flow directly statute, rather than from any regula tion DHS issued.

V We are left, therefore, purely legal question: is the authority given to DHS (and exercised by USCIS) in U.S.C. 1182(d)(14) the exclusive path for waivers inadmissibil ity U Visa applicants? If so, then the case over, because it plain that the power section 1182(d)(14) can be exercised only by DHS. That subsection gives Secretary Homeland Security authority waive most statutory grounds inadmissibility Visa applicants “if Sec retary … considers it be public national interest do so.” But fact that only DHS may section 1182(d)(14) does not tell us whether that provision only means appli cant can obtain waiver. Nothing section 1182(d) says that is, nor can we find such language elsewhere statute.

Instead, see that plain language section 1182(d)(3)(A) grants Attorney General authority waive “an alien” applying tempo rary nonimmigrant visa, subject only explicit exceptions do not apply here ( e.g., espionage, attempted overthrow government, potentially serious adverse foreign policy consequences, participation genocide). Conspicuously missing list exceptions situation now fore us. We free write limitation Attor ney General’s powers Congress did impose. thus conclude 1182(d)(3)(A) permits Attor ney General waive Visa appli cants like L.D.G.

If General divested power waive cases, could because 1182(d)(14) effected partial implied repeal his power under subsection (d)(3)(A). Recall that when section 1182(d)(14) added the U.S. Code 2000, gave discretion waive inadmissibility the Attorney General. coexistence the prior version section 1182(d)(14) section 1182(d)(3)(A) creates some awkwardness. If we accept waivers applicants available under 1182(d)(3)(A) the start, then we risk calling 1182(d)(14) redundant, which an outcome we strive avoid interpreting statutes. See, e.g. , In re Mer ‐ chants Grain, Inc. F.3d 1353–54 (7th Cir. Con ‐ versely, we find section 1182(d)(14) imposes re striction the Attorney General’s otherwise facially valid power such section 1182(d)(3)(A), we would recognizing partial implied repeal the authori ty the latter section. This creates its own prob lems, given presumption against such repeals fact later statute does not meet usual require ments implied repeal, such an irreconcilable con flict or effort cover whole subject matter former statute act clear substitute. Carcieri Salazar (2009).

Upon closer examination section 1182(d)(14), con clude redundancy problem so stark after all. From time first passed continuing pre sent day, 1182(d)(14) given identified de partment head (whether Attorney General Secre tary Homeland Security) discretionary power waive grounds anywhere statute “other than paragraph [a](3)(E).” This power more expansive than General’s authority 1182(d)(3)(A), available ‐ for aliens inadmissible under paragraphs (a)(3)(A)(i)(I), (a)(3)(A)(ii), (a)(3)(A)(iii), and (a)(3)(C), as well as those admissible (a)(3)(E). Accordingly, subsection (d)(14) was necessary not redundant insofar as it created even greater power grant a waiver of purposes of a Visa than was available preexisting catch ‐ provision. Far from repealing section 1182(d)(3)(A), newer provision a context specific enhancement. only other way section 1182(d)(14) could preclude General granting a waiver inadmissi bility a Visa applicant if Congress impliedly repealed power it amended statute transfer discre tion Secretary Homeland Security. But amend ment does provide basis finding implied re peal. “[A]bsent clearly expressed congressional intention, … [a]n implied repeal will where provisions two statutes are irreconcilable conflict, where lat ter Act covers whole subject earlier one clearly intended substitute.” Carcieri (second alteration original) (internal quotation marks omitted). Here, face silence by Congress, we have two statutory provisions are capable coexistence they understood provide dual tracks de termination. later enacted law (1182(d)(14)) does cover whole subject matter former (1182(d)(3)(A)). In fact, originally offered supplement; it would odd now find substitute blanket provi sion. In absence clear indication Congress contrary, find 1182(d)(14) section 1182(d)(3)(A) can do coexist, applicant 1182(d)(3)(A). 17 13 ‐ 1011

This best can make of an ambiguous statutory scheme. encouraged, however, by fact there reason believe Congress intended result. Though petitioner seeking Visa, many nonciti zens placed removal proceedings will apply variety of forms of relief from removal. For example, K ‐ 1 K ‐ 2 visas allow fiancés of U.S. citizens their children remain States temporarily order marry as planned; K K ‐ 4 visas provide same right noncit izen spouses awaiting permanent resident status. See U.S.C. §§ 1184(d), 1184(r). This court has considered ap proved use waivers of under 1182(d)(3) noncitizen removal proceedings obtain K visa. See Atunnise Mukasey F.3d 837–38 (7th Cir. Other avenues relief removal, such as Temporary Protected Status under U.S.C. § 1254a withholding Convention Against Torture, see C.F.R. 208.16(c), also require an otherwise inadmissible noncitizen obtain waiver before relief can granted. See 1254a(c)(2).

With so many avenues relief available them requiring inadmissibility, allowing make global resolution requests 1182(d)(3) offers efficiency advantages over compartmental izing decisions whenever statute gives second agency more targeted authority. Efficiency no small consideration an administrative system as back logged immigration bureaucracy been. Noncitizens ultimately relief waited average days nationwide their immigration cases reach outcome October Wait Immigra tion Relief Longest Nebraska, Oregon, Illinois Courts T RANSACTIONAL R ECORDS A CCESS C LEARINGHOUSE (Nov. 2013), http://trac.syr.edu/whatsnew/email.131112.html (last visited Mar. This number jumps to days Illinois, where L.D.G.’s case heard. Id . And the backlog shows no signs abating; nationally, the average waiting period has increased 37% over the last five years, from days fiscal year Id .

Two potential scenarios can arise when the IJ is asked make a global waiver determination If the IJ grants waiver inadmissibility, the noncitizen can directly seek the relevant relief (such nonimmigrant visa) from appropriate agency without going through whatever waiver process agency affords. Alternatively, if IJ denies waiver, noncitizen can still seek waiver from relevant agency if statute pro vides it. Either way, relatively little time is lost. will become familiar facts necessary make determination part adjudication over proceeding. Concurrent over Visa waivers, shared DOJ DHS, thus its advantages administration immigration system compared possibility exclusive USCIS jurisdiction. Finally, important recall final analysis, even USCIS retains authority deny itself.

A procedure applicant obtains from one agency order obtain visa another agency neither unprecedented nor unique. For example, responsible granting K series visas available noncitizen fiancés spouses citi zens, but obtain these visas can granted by IJ under Atunnise F.3d 836–37. Indeed, cannot find any provision IJs themselves grant visas; waiver by IJ always used clear way another department visa. To find IJ did have jurisdiction consider waiver context 1182(d)(3) because visa itself different agency would create needless incon sistency between Visas others.

Our decision today comports with “longstanding principle construing any lingering ambiguities deporta tion statutes favor alien.” I.N.S. Cardoza Fonseca (1987). We express no opinion on merits petitioner’s claim, significance fact been conducting parallel proceedings (to our knowledge) have yet been resolved appeal. We hold incorrect hold IJ lacked consider L.D.G’s request. We therefore G RANT petition review V ACATE IJ’s removal. send petitioner’s case back instructions consider petitioner’s request un der 1182(d)(3)(A).

Case Details

Case Name: L. D. G. v. Eric Holder, Jr.

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Mar 12, 2014

Citations: 744 F.3d 1022; 2014 WL 944985; 2014 U.S. App. LEXIS 4662; 13-1011

Docket Number: 13-1011

Court Abbreviation: 7th Cir.