Matter of Khan: IJ Cannot Adjudicate INA 212(d)(3)(A)(ii) Waiver for U Visa Petitioner

 

Introduction: Matter of Khan, 26 I&N Dec. 797 (BIA 2016)

Matter of KhanOn September 8, 2016, the Board of Immigration Appeals (BIA) issued a precedent decision in the Matter of Khan, 26 I&N Dec. 797 (BIA 2016) [PDF version]. The Board held that an immigration judge does not have the authority to adjudicate a request for a waiver of inadmissibility under section 212(d)(3)(A)(ii) of the Immigration and Nationality Act (INA) made by a petitioner for U nonimmigrant status [see article]. In so doing, the Board reached a different conclusion than had the Seventh Circuit in L.D.G. v Holder, 744 F.3d 1022 (7th Cir. 2014) [PDF version], but it nevertheless made its decision binding precedent nationwide, including in the Seventh Circuit.

In this article, we will discuss the facts of the Matter of Khan, the Board's analysis and decision, and the broader effects of the new precedent on petitions for U nonimmigrant status.

Facts and Procedural History: 26 I&N Dec. at 797-98

The respondent, a native and citizen of Guyana, had been admitted to the United States as a lawful permanent resident (LPR) in 1992. In 2008, the respondent was convicted of several criminal violations under Florida state law. Based in these convictions, the respondent was placed in removal proceedings and charged with removability under section 237(a)(2)(A)(iii) of the INA (as an alien convicted of sexual abuse of a minor), which is an immigration aggravated felony under section 101(a)(43)(A).

During proceedings, the Immigration Judge sustained the charge of removability under section 237(a)(2)(A)(iii). The respondent did not request relief from removal. Rather, the respondent requested a waiver of inadmissibility in conjunction with his petition for U nonimmigrant status (under section 101(a)(15)(U) of the INA). In short, instead of seeking relief from removal as an LPR, the respondent conceded removability but instead sought a waiver of inadmissibility in conjunction with an application for a nonimmigrant visa. To this effect, the respondent filed a Form I-918, Petition for U Nonimmigrant Status and a Form I-912, Permission for Advance Permission to Enter as a Nonimmigrant, both in 2012. In 2013, the Immigration Judge administratively closed removal proceedings in order for the respondent's petition for U nonimmigrant status to be adjudicated.

The Department of Homeland Security (DHS) filed an interlocutory appeal in 2013, but the Board declined to exercise jurisdiction over the appeal at that time. In 2014, the USCIS denied the requests for U nonimmigrant status and for a waiver. The Immigration Judge subsequently recalendared the case, and the petitioner requested a waiver of inadmissibility under section 212(d)(3)(A)(ii) of the INA from the Immigration Judge.

In adjudicating the request, the Immigration Judge recognized that, under statute, the USCIS has exclusive jurisdiction over petitions for U nonimmigrant status. However, the Immigration Judge found that she had concurrent jurisdiction to adjudicate the request for a waiver under section 212(d)(3)(A)(ii). Nevertheless, the Immigration Judge found that the respondent did not satisfy his burden of establishing that he merited the favorable exercise of discretion and denied the waiver request.

The respondent appealed from the decision, arguing that the Immigration Judge erred in finding that he did not merit the favorable exercise of discretion in his waiver request. The DHS opposed the appeal, arguing that the Immigration Judge was in error in finding that she had “concurrent jurisdiction” to adjudicate the waiver request.

Issue in the Case: 26 I&N Dec. at 799

The Board explained that “[t]he question before us is whether an Immigration Judge has authority to adjudicate a request for a waiver of inadmissibility under section 212(d)(3)(A)(ii) of the [INA] by a petitioner for U nonimmigrant status.”

Section 212(d)(3)(A)(ii) of the INA provides for a waiver for aliens inadmissible to the United States under section 212(a) of the INA.1 The waiver may be granted if the alien is in possession of appropriate documents or is granted a waiver thereof. This waiver is only available to an alien who is seeking admission into the United States temporarily as a nonimmigrant (therefore, it is exclusively for applicants for nonimmigrant visas rather than for immigrant visas). The decision of whether to grant a section 212(d)(3)(A)(ii) waiver is within the discretion of the Attorney General, and the Attorney General “shall prescribe conditions, including extraction 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 issue of jurisdiction arises from USCIS's exclusive jurisdiction over petitions for U nonimmigrant status under section 101(a)(15)(U) of the INA juxtaposed with the jurisdiction of the Attorney General to grant waivers of inadmissibility under section 212(d)(3)(A)(ii) of the INA. In general, the situation arises because petitioners for U nonimmigrant status must submit necessary waiver applications to the USCIS. The question before the Board was, in the case of an application for a waiver under section 212(d)(3)(A)(ii), whether the Immigration Judge was correct in concluding that she had “concurrent jurisdiction” over the waiver request, notwithstanding USCIS's exclusive jurisdiction over petitions for U nonimmigrant status.

Analysis and Decision: 26 I&N Dec. at 799-805

Ultimately, the Board would find that the Immigration Judge erred in finding that she had concurrent jurisdiction over the application for a waiver under section 212(d)(3)(A)(ii) filed by a petitioner for U nonimmigrant status. In order to understand why, we must study the Board's analysis of the relevant statutes, regulations, and administrative precedent.

A. USCIS Jurisdiction Over Petitions for U Nonimmigrant Status: 26 I&N Dec. at 799-800

The Board explained that under section 101(a)(15)(U) of the INA as well as section 214(p), the USCIS has exclusive jurisdiction over petitions for U nonimmigrant status. Implementing regulations found in 8 C.F.R. 214.14(c)(1) provide that the “USCIS has sole jurisdiction over all petitions for U nonimmigrant status.” The Board notes that under this regulation, a petitioner for U nonimmigrant status who is in removal proceedings must file a Form I-918 “directly with USCIS.”

In the Matter of G-K-, 26 I&N Dec. 88, 93 (BIA 2013) [PDF version], the Board stated that “[e]xclusive jurisdiction over U nonimmigrant visa petitions rests with the DHS, but an alien may seek a continuance in immigration proceedings to await the visa process.” In the Matter of Sanchez-Sosa, 25 I&N Dec. 807, 811 (BIA 2012) [PDF version], the Board explained that a petitioner for U nonimmigrant status who is inadmissible to the United States “must file an application to waive inadmissibility on [the] Form I-912 … as part of the evidentiary submission” to the USCIS. The decision also noted that “[t]he USCIS has exclusive jurisdiction over U visa petitions.”

In the instant case, the Board explained that there exists a special inadmissibility waiver for U visa petitioners found in section 212(d)(14) of the INA. This provision allows the Secretary of DHS, in the discretion of the Attorney General, to waive inadmissibility under section INA 212(a) (except inadmissibility under section 212(a)(3)(E)) for a nonimmigrant described in section 101(a)(15)(U) (provision for U nonimmigrant status). Such a waiver may be granted if the Secretary of Homeland Security determines it to be in the public or national interest. Under implementing regulations found in 8 C.F.R. 212.17(b)(2), if the inadmissibility stems from violent or dangerous crimes or national security issues, such a waiver will only be granted in “extraordinary circumstances.” Under 8 C.F.R. 212.17(b)(3), there is no appeal from the denial of a waiver under section 212(d)(14) of the INA, but under certain circumstances, a petitioner for U nonimmigrant status may re-file a waiver request.

B. Authority of Immigration Judges to Adjudicate Waivers Under Section 212(d)(3)(A)(ii): 26 I&N Dec. at 800-804

The Board explains that unlike the section 212(d)(14) waiver, which is exclusively for applicants for U nonimmigrant status, the section 212(d)(3)(A) waiver is a waiver of general applicability that authorizes the “temporary admission of nonimmigrant aliens applying for advance permission to enter the United States in the discretion of the Attorney General.” Applications for a waiver may be made at a Port of Entry or preclearance office designated by the United States Customs and Border Protection (CBP) under section 212(d)(3)(A)(ii), or by at a U.S. consulate under section 212(d)(3)(A)(i).

The respondent argued that because an application for a section 212(d)(3)(A)(ii) waiver is under the jurisdiction of the Attorney General, it follows implicitly that Immigration Judges have authority over waiver applications with regard to petitions for U nonimmigrant status. To support this position, the respondent relied upon the Seventh Circuit decision in L.D.G. v. Holder, 744 F.3d 1022 (7th Cir. 2014), wherein the Seventh Circuit held that Congress did not intend to preclude a petitioner for U nonimmigrant status from requesting that the Attorney General grant a waiver under section 212(d)(3)(A)(ii). Accordingly, the Seventh Circuit held that Immigration Judges have the authority to grant such wavers to petitioners for U nonimmigrant status. Conversely, however, the Board took the position that “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.”

The Board recognized that the statutes are somewhat unclear as to the “interplay” of section 212(d)(14), a waiver intended exclusively for petitioners for U nonimmigrant status, and the generally applicable waiver for nonimmigrants found in section 212(d)(3)(A)(ii). The Board left open the question as to whether the Attorney General may have waiver authority regarding U visas. However, the Board held that even if the Attorney General does have such authority, “we cannot conclude that such authority extends to Immigration Judges without taking the governing regulations and the authority of Immigration Judges into account.”

First, the Board noted that the Attorney General has only delegated limited authority to Immigration Judges in adjudicating section 212(d)(3)(A)(ii) waivers. These situations are described in regulations found in 8 C.F.R. 214.2(b), 235.2(d), 1212.4(b), and 1235.2(d). Under the regulations, an application for a waiver may be submitted on the Form I-192, Application for Advance Permission to Enter as a Nonimmigrant, with the USCIS District Director in charge of the alien's arrival in the United States. Under the regulations, this application may be renewed with an Immigration Judge “in the context of a deferred inspection after the waiver has been denied at the port of entry” (see 8 C.F.R. 214.4(b)). The initial denial of a waiver application by the District Director shall be “without prejudice” to the renewal of the application in proceedings before Immigration Judge (see 8 C.F.R. 235.2(d)).

The Board explained that the relevant statutes and regulations severely limit an Immigration Judge's jurisdiction over waiver requests under section 212(d)(3)(A)(ii) of the INA. Most importantly, the Board held that the circumstances in which an Immigration Judge has jurisdiction are “clearly inapplicable to a petitioner for U nonimmigrant status.” With regard to the Seventh Circuit decision in L.D.G. v Holder, the Board noted that the Seventh Circuit did not specifically address 8 C.F.R. 235.2(d), which is the main limitation on the Immigration Judge's jurisdiction over section 212(d)(3)(A)(ii) waivers.

In addition to the relevant regulations, the Board has ample precedent regarding the limited authority of Immigration Judges over section 212(d)(3)(A)(ii) waivers. The Board discussed the limited discretion of Immigration Judge's over renewed requests for waivers in the Matter of Kazemi, 19 I&N Dec. 49, 52 (BIA 1984) [PDF version], and in the Matter of Fueyo, 20 I&N Dec. 84, 86-87 (BIA 1989) [PDF version]. In accordance with the regulations and administrative precedent, the Board found that the Immigration Judge's authority over section 212(d)(3)(A)(ii) waiver requests does not extend to requests made by a petitioner for U nonimmigrant status. This is because a petitioner for U nonimmigrant status is “physically” in the United States and “is therefore not subject to deferred inspection during which a CBP or designated official may deny the waiver at a port of entry.”

The Board took the position that the Seventh Circuit in L.D.G. v Holder took an overly broad view of the powers of an Immigration Judge to conduct removal proceedings under section 240 of the INA and other proceedings. The Board explained that the authority of Immigration Judges to conduct proceedings “is only that authority delegated to them by the [INA] and through the Attorney General through regulation.” The Board articulated this principle in the Matter of G-K-, 26 I&N Dec. at 93, and in the Matter of Avetiysan, 25 I&N Dec. 688, 691 (BIA 2012) [PDF version].

For the foregoing reasons, the Board held that neither the statutes nor the regulations give Immigration Judges the authority to grant waivers of inadmissibility under section 212(d)(3)(A)(ii) of the INA to petitioners for U nonimmigrant status who are present in the United States. The Board's position is supported by a Third Circuit decision from August 1, 2016, titled Sunday v. Att'y. Gen. of the U.S., 832 F.3d 211 (3d Cir. Aug. 1, 2016) [PDF version]. In this decision, the Third Circuit held that an Immigration Judge's authority to consider a section 212(d)(3)(A)(ii) waiver is limited to those circumstances where the alien had applied for admission with a USCIS District Director prior to entry, and does not extend to those situations where the alien was already admitted to the United States and is seeking a waiver of inadmissibility to petition for U nonimmigrant status.

Additionally, the Board took the position that Congress was aware, when it enacted the section 212(d)(4) waiver for petitioners for U nonimmigrant status, of the existence of the section 212(d)(3)(A)(ii) waiver and likely enacted it upon finding that section 212(d)(3)(A)(ii) would be inadequate to address certain situations faced by qualified petitioners for U nonimmigrant status. Furthermore, the section 212(d)(4) waiver may only be granted by the Secretary of DHS, leading to the conclusion that Congress did not intend for it to be an issue for Immigration Judges.

Finally, the Board did not find persuasive the Seventh Circuit's argument that allowing an Immigration Judge jurisdiction over a section 212(d)(3)(A)(ii) waiver request for U nonimmigrant status would lead to increased efficiency in adjudications . First, the Board noted that Immigration Judges may only decide issues that fall within the scope of their jurisdiction (see the Matter of Yarui, 25 I&N Dec. 103, 110 (BIA 2009) [PDF version]). Second, the Board explained that even if the Immigration Judge had granted the waiver request, the respondent would still have had to re-file a petition for U nonimmigrant status with the USCIS and await final adjudication.

Reach of the Decision: 26 I&N Dec. at 804-05

In general, the BIA is bound by circuit court precedent for cases arising from that circuit. In this case, the Board reached a contrary conclusion to that of the Seventh Circuit but that was in accord with Third Circuit precedent. This means that the Board could have issued its precedent decision while stating that it would follow the Seventh Circuit's decision only in cases arising in the jurisdiction of the Seventh Circuit. However, the Board instead decided to apply its new precedent nationwide. In reaching this decision, the Board concluded that the Seventh Circuit's analysis “did not expressly determine that the language in section 212(d)(3)(A)(ii) of the [INA] was unambiguous.” In fact, the Seventh Circuit expressly held that the statutory scheme for considering a request for a waiver of inadmissibility filed by a petitioner for U nonimmigrant status was “ambiguous.” Under Supreme Court precedent in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) [PDF version], courts are required to defer to an agency's interpretation of a statute unless the court holds that the construction of the statute follows from unambiguous terms that leave no room for agency discretion (see Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs, 545 U.S. 967, 982-85 (2005) [PDF version]). Accordingly, because the Board found that the Seventh Circuit did not find the language of section 212(d)(3)(A) to be unambiguous such that there was no room for agency discretion, the Board decided to apply its holding nationwide, including to cases arising in the Seventh Circuit.

The Board held that Immigration Judges do not have the authority to adjudication a request for a waiver under section 212(d)(3)(A)(ii) made by a petitioner for U nonimmigrant status. Because the Immigration Judge in the instant case erred in doing so, the Board dismissed the respondent's appeal.

Conclusion

The Matter of Khan makes explicit that an Immigration Judge may not adjudicate a waiver request made by a petitioner for U nonimmigrant status under section 212(d)(3)(A). This means that a petitioner for U nonimmigrant status in the same position as the respondent in the Matter of Khan will be required to request a waiver under section 212(d)(14) with the USCIS in conjunction with the U visa petition. A person in removal proceedings or who may be inadmissible and believes that he or she may be eligible for U nonimmigrant status should consult with an experienced immigration attorney. An experienced immigration attorney will be able to assess the case and determine whether the alien has a case for relief.

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  1. However, this statutorily unavailable to an alien who is inadmissible under section 212(a)(3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), (3)(E)(i), and (3)(E)(ii).