L. D. G. v. Eric Holder, Jr.L. D. G. v. Eric Holder, Jr.
This petition for review of a final order of removal is brought by L.D.G., the victim of a serious crime who was also convicted of a more mundane one. When L.D.G. applied for a U Visa in order to forestall her impending removal from the United States, U.S. Citizenship and Immigration Services (USCIS) refused to waive her statutory inadmissibility stemming from her uninspected entry and prior drug conviction. Facing certain removal, she asked the Immigration Judge (IJ) presiding over her removal proceedings to determine independently whether to waive her inadmissibility. The IJ declined and found that USCIS alone had jurisdiction to provide such a waiver. The Board of Immigration Appeals affirmed. We must now decide whether the IJ correctly declined jurisdiction, or if Congress has created concurrent jurisdiction under which both the Department of Justice and the Department of Homeland Security may grant waivers of inadmissibility to U Visa applicants who qualify for them.
I
We begin with a bit of background about the labyrinthine statutory structure that lies behind this appeal. Congress created the U Visa as part of the Victims of Trafficking and Violence Protection Act of 2000. See Pub.L. No. 106-386, 114 Stat. 1464 (2000). U Visas allow the victims of certain statutorily designated crimes who have suffered “substantial physical and mental abuse,” and who have been or are likely to be helpful to authorities in investigating or prosecuting that crime, to remain in the United States as lawful temporary residents despite being otherwise subject to removal. See
U Visas are not automatically granted to qualifying noncitizens. The decision whether to grant a U Visa is statutorily committed to the discretion of the Secretary of Homeland Security, see
Further complications arise for noncitizens who are inadmissible to the United States under
One section in particular is of interest here; it is always available for potential U Visa applicants in need of a waiver:
The Secretary of Homeland Security shall determine whether a ground of inadmissibility exists with respect to a nonimmigrant described in section 1101(a)(15)(U) of this title [governing U Visas]. The Secretary of Homeland Security, in the Attorney General‘s [sic] discretion, may waive the application of subsection (a) of this section ... in the case of a nonimmigrant described in section 1101(a)(15)(U) of this title, if the Secretary of Homeland Security considers it to be in the public or national interest to do so.
When the U Visas were first created, discretion to grant both the visas themselves and section 1182(d)(14) waivers of inadmissibility was vested in the Attorney General. See Victims of Trafficking and Violence Protection Act, 114 Stat. 1464. The passage of the statute, however, predated the creation of the Department of Homeland Security. Primary responsibility for granting and denying both the visas and (d)(14) waivers was transferred to DHS in 2006, before any visas were issued. See Emergency Supplemental Appropriations Act for Defense, The Global War on Terror, and Tsunami Relief, Pub.L. No. 109-13, 119 Stat. 231 (May 11, 2005) (section 1182(d) waivers); Violence Against Women and Department of Justice Reauthorization Act of 2005, Pub.L. No. 109-162, 119 Stat. 2960 (Jan. 5, 2006) (U Visas). DHS regulations regarding the issuance of U Visas were completed in 2007, see
Our description of the mechanics of obtaining a U Visa up to this point is generally uncontested. The plot thickens, however, when one realizes that there is a
[A]n alien ... who is inadmissible under subsection (a) of this section ... but who is in possession of appropriate documents or is granted a waiver thereof and is seeking admission, may be admitted to the United States temporarily as a nonimmigrant in the discretion of the Attorney General.
This is the waiver provision that L.D.G. seeks to invoke.
Statutory references to the “Attorney General” include the EOIR (where both the IJs and the Board reside), which is a component of the Department of Justice. Cf., e.g., In re H-N-, 22 I. & N. Dec. 1039, 1043 (B.I.A.1999). We have interpreted section 1182(d)(3)(A) to permit an IJ to waive inadmissibility of a nonimmigrant. See, e.g., Atunnise v. Mukasey, 523 F.3d 830, 833 (7th Cir.2008). L.D.G.‘s petition requires us to decide whether the IJ retains that power when a noncitizen seeks waiver of inadmissibility in order to obtain a U Visa, despite the more targeted U Visa waiver provision in section 1182(d)(14). With that background in mind, we are ready to turn to the facts of petitioner‘s case.
II
L.D.G. and her husband entered the United States from Mexico without inspection in 1987. They first settled in California, where they built a comfortable life and had four U.S. citizen children. In 2005, the family moved to Illinois in order to support L.D.G.‘s brother-in-law, who was struggling with a drug problem. In January 2006, the family purchased and began to operate a restaurant, which by all accounts did fairly well during its first seven months.
The family members’ lives changed dramatically one day in August 2006. A group of armed men entered the restaurant and kidnapped L.D.G. and her family, along with one of the restaurant‘s employees and a customer. The assailants were looking for L.D.G.‘s brother-in-law. When the family could not provide information about his whereabouts, they were bound and blindfolded, and threatened with death and sexual assault. The hostages were taken to a private residence in another town, where the kidnappers sexually assaulted L.D.G‘s teenage daughter and severely beat her husband. The family was rescued only when police officers arrived several hours later. L.D.G. and her family assisted police in the subsequent investigation and prosecution of their kidnappers.
The family was too frightened to return to the restaurant business in the wake of these events. Lacking a stable source of income, they fell on hard times. L.D.G.‘s husband ultimately made the ill-fated decision to enter the drug trade to support the family, a fact L.D.G. maintains that she learned only when police pulled her over in June 2007 and searched her car for drugs. She later discovered that the police had executed a search warrant on her home that same day and found two kilograms of cocaine in the garage. She and her husband were arrested and charged with possession of a controlled substance with intent to deliver. L.D.G. maintains her innocence to this day, but she accepted a plea deal carrying a sentence of probation and time served in order to return to her children. Her husband was sentenced to five years in state prison, where he remains incarcerated.
In November 2007, DHS initiated removal proceedings against L.D.G. under
Meanwhile, L.D.G.‘s immigration proceedings—which were continued four times while she pursued the waiver from USCIS—resumed in the immigration court after USCIS issued its final denial in September 2010. Her removal hearing took place on March 30, 2011. There she conceded that she was removable and ineligible for cancellation of that removal. See
The IJ found that he lacked jurisdiction to grant this relief. He looked first to the DHS regulations governing U Visas, in particular
The Board adopted the IJ‘s reasoning and affirmed on appeal. It found the matter controlled by
III
Though we do not have jurisdiction to review discretionary decisions of the Attorney General or the Secretary of Homeland Security,
Before turning to the main event, we must take care of a preliminary matter: the Board‘s impression that L.D.G. was pursuing a retroactive waiver under section 1182(d)(3). That is not correct. The relief she seeks is entirely forward-looking. The comparison to Borrego is therefore inapposite, although contrasting the cases is useful for illustrating the Board‘s error. In Borrego, the petitioner on an earlier occasion had been caught using a fake name at the border while attempting to enter the United States, and as a result she was barred from entering the country for five years. 539 F.3d at 689-90. Despite the bar, she successfully obtained a B-2 (tourist) visa in her own name less than four years later. When she was found out and put in removal proceedings, she sought a retroactive waiver under section 1182(d)(3)(A) in order to seek an adjustment of status. Id. at 691. Her B-2 visa was facially invalid; it could be revived only if her inadmissibility was waived retroactively, which would have made her eligible to receive the visa four years earlier.
L.D.G.‘s situation is quite different. Unlike the petitioner in Borrego, L.D.G. does not yet have a visa. She seeks waiver of her grounds for inadmissibility only to gain eligibility for a U Visa in the future. Waivers of inadmissibility necessarily relieve applicants of the effects of past conduct, but this does not make the waivers themselves retroactive. A waiver is retroactive when it works to salvage relief previously granted for which the applicant was not qualified, and thus was void from the outset. L.D.G., by contrast, has not obtained any relief at all. She is seeking a waiver of inadmissibility in order to qualify for a new U Visa. Borrego presents no barrier to the IJ‘s providing this relief.
With that settled, we turn to the central question presented: whether the IJ had jurisdiction to consider a waiver under section 1182(d)(3)(A).
IV
For all of the complexities of immigration statutes, the decisions of the immigration courts are administrative decisions, and the government suggests our analysis would be aided by applying well-settled administrative law principles. The government sees this as an appropriate case for the considerable deference owed to agencies’ interpretations of their own regulations called for by Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997). It argues that the Board‘s determination that USCIS had exclusive jurisdiction to consider waivers of inadmissibility predicate to U Visas was just an interpretation of the U Visa regulation found at
But the government‘s argument slides past some important details, which taken together make the Board‘s interpretation a poor candidate for Auer deference twice over. First, the most basic requirement—that the agency be interpreting its own (ambiguous) regulation—is missing here. See Christopher v. SmithKline Beecham Corp., — U.S. —, 132 S.Ct. 2156, 2166, 183 L.Ed.2d 153 (2012). Sections 214.14
Second, even if deference extended to sister agencies, it is due only if an interpretation is not plainly erroneous or inconsistent with the regulation. Interpretations that are flatly at odds with the language of a regulation cannot be followed, because “an agency cannot by regulation contradict a statute, but only supplement it.” Keys v. Barnhart, 347 F.3d 990, 993 (7th Cir.2003). Moreover, flat contradiction is not the only way in which an inconsistency can arise. Interpretations can also be objectionable if they unduly restrict the plain language set forth in the regulation, see Joseph v. Holder, 579 F.3d 827, 833-34 (7th Cir.2009), or because the agency‘s stated position is not in fact an “interpretation” of the regulation at all. The latter is the case here: the regulations at issue (
The deference owed to the Board‘s interpretation of the relevant regulations may be unimportant in any event. Any interpretation would still need to be consistent with the statute. From that point of view, we might consider whether the DHS regulations, as interpreted by the Board, are entitled to deference under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The first question would be whether Congress had unambiguously expressed its intent on the matter. If the answer were yes, that would be the end of things. If it were no, the next question would be whether the agency‘s construction is a permissible interpretation of the statute. Id. at 842-43, 104 S.Ct. 2778. We need not pursue this further, however, because DHS has no authority to promulgate a regulation purporting to define the IJ‘s jurisdiction. More generally, there is nothing in either
V
We are left, therefore, with a purely legal question: is the authority given to DHS (and exercised by USCIS) in
Instead, we see that the plain language of section 1182(d)(3)(A) grants to the Attorney General authority to waive the inadmissibility of “an alien” applying for a temporary nonimmigrant visa, subject only to explicit exceptions that do not apply here (e.g., espionage, attempted overthrow of the government, potentially serious adverse foreign policy consequences, and participation in genocide). Conspicuously missing from the list of exceptions is the situation now before us. We are not free to write in a limitation on the Attorney General‘s powers that Congress did not impose. We thus conclude that section 1182(d)(3)(A) permits the Attorney General to waive the inadmissibility of U Visa applicants like L.D.G.
If the Attorney General were divested of that power to waive in U Visa cases, it could only be because section 1182(d)(14) effected a partial implied repeal of his power under subsection (d)(3)(A). Recall that when section 1182(d)(14) was added to the U.S. Code in 2000, it gave all discretion to waive inadmissibility to the Attorney General. The coexistence of the prior version of section 1182(d)(14) with section 1182(d)(3)(A) creates some awkwardness. If we accept that waivers of inadmissibility for U Visa applicants were available under 1182(d)(3)(A) from the start, then we risk calling 1182(d)(14) redundant, which is an outcome we strive to avoid when interpreting statutes. See, e.g., In re Merchants Grain, Inc., 93 F.3d 1347, 1353-54 (7th Cir.1996). Conversely, if we find that section 1182(d)(14) imposes a restriction on the Attorney General‘s otherwise facially valid power to grant such waivers under section 1182(d)(3)(A), we would be recognizing a partial implied repeal of the authority granted by the latter section. This creates its own problems, given the presumption against such repeals and the fact that the later statute does not meet the usual requirements for an implied repeal, such as an irreconcilable conflict or an effort to cover the whole of the subject matter of the former statute and act as a clear substitute. See Carcieri v. Salazar, 555 U.S. 379, 395, 129 S.Ct. 1058, 172 L.Ed.2d 791 (2009).
Upon closer examination of section 1182(d)(14), we conclude that the redundancy problem is not so stark after all. From the time it was first passed and continuing to the present day, section 1182(d)(14) has given the identified department head (whether the Attorney General or the Secretary of Homeland Security) the discretionary power to waive grounds for inadmissibility found anywhere in the statute “other than paragraph [a](3)(E).”
The only other way section 1182(d)(14) could preclude the Attorney General from granting a waiver of inadmissibility to a U Visa applicant is if Congress impliedly repealed that power when it amended the statute to transfer discretion to the Secretary of Homeland Security. But this amendment does not provide the basis for a finding of implied repeal. “[A]bsent a clearly expressed congressional intention, ... [a]n implied repeal will only be found where provisions in two statutes are in irreconcilable conflict, or where the latter Act covers the whole subject of the earlier one and is clearly intended as a substitute.” Carcieri, 555 U.S. at 395, 129 S.Ct. 1058 (second alteration in original) (internal quotation marks omitted). Here, in the face of silence by Congress, we have two statutory provisions that are capable of coexistence if they are understood to provide dual tracks for a waiver determination. The later-enacted law (1182(d)(14)) does not cover the whole subject matter of the former (1182(d)(3)(A)). In fact, it was originally offered as a supplement; it would be odd now to find it a substitute for the blanket waiver provision. In the absence of a clear indication by Congress to the contrary, we find that section 1182(d)(14) and section 1182(d)(3)(A) waivers can and do coexist, and that the IJ has jurisdiction to grant a waiver of inadmissibility to a U Visa applicant under section 1182(d)(3)(A).
This is the best we can make of an ambiguous statutory scheme. We are encouraged, however, by the fact that there is reason to believe that Congress intended this result. Though petitioner is seeking only a U Visa, many noncitizens placed in removal proceedings will apply for a variety of forms of relief from removal. For example, K-1 and K-2 visas allow the fiancés of U.S. citizens and their children to remain in the United States temporarily in order to marry as planned; K-3 and K-4 visas provide the same right to noncitizen spouses awaiting permanent resident status. See
With so many avenues of relief available and all of them requiring waivers of inadmissibility, allowing the IJ to make a global resolution of waiver requests under section 1182(d)(3) offers efficiency advantages over compartmentalizing waiver decisions whenever a statute gives a second agency more targeted waiver authority. Efficiency is no small consideration in an administrative system as backlogged as the U.S. immigration bureaucracy has been. Noncitizens who ultimately were granted relief
Two potential scenarios can arise when the IJ is asked to make a global waiver determination under section 1182(d)(3). If the IJ grants a waiver of inadmissibility, the noncitizen can directly seek the relevant relief (such as a nonimmigrant visa) from the appropriate agency without going through whatever waiver process the agency affords. Alternatively, if the IJ denies a waiver, the noncitizen can still seek a waiver from the relevant agency if a statute provides for it. Either way, relatively little time is lost. The IJ will become familiar with the facts necessary to make a waiver determination as part of the adjudication of the overall removal proceeding. Concurrent jurisdiction over U Visa waivers, shared by DOJ and DHS, thus has its advantages for the administration of the immigration system when compared to the possibility of exclusive USCIS jurisdiction. Finally, it is important to recall that in the final analysis, even if a waiver is granted USCIS retains the authority to grant or to deny the U Visa itself.
A procedure under which the applicant obtains a waiver of inadmissibility from one agency in order to obtain a visa from another agency is neither unprecedented nor unique. For example, USCIS is responsible for granting the K-series visas available to noncitizen fiancés and spouses of U.S. citizens, but waivers of inadmissibility in order to obtain these visas can be granted by the IJ under section 1182(d)(3). See Atunnise, 523 F.3d at 836-37. Indeed, we cannot find any provision under which IJs themselves grant visas; a waiver of inadmissibility by an IJ is always used to clear the way for another department to grant the visa. To find the IJ did not have jurisdiction to consider a waiver in the U Visa context under section 1182(d)(3) because the visa itself had to be granted by a different agency would create a needless inconsistency between U Visas and all others.
Our decision today comports with the “longstanding principle of construing any lingering ambiguities in deportation statutes in favor of the alien.” I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 449, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). We express no opinion on the merits of petitioner‘s waiver claim, or the significance of the fact that USCIS has been conducting parallel proceedings that (to our knowledge) have not yet been resolved on appeal. We hold only that the Board was incorrect to hold that the IJ lacked jurisdiction to consider L.D.G‘s waiver request. We therefore Grant the petition for review and Vacate the IJ‘s order of removal. We send petitioner‘s case back to the IJ with instructions to consider petitioner‘s waiver request under