Updates

(Update: July 15, 2018): On June 7, 2018, the United States Court of the Appeals for the Seventh Circuit issued a published decision in Meridor v. U.S. Attorney General, 891 F.3d 1302 (11th Cir. 2018) [PDF version]. The Eleventh Circuit agreed with the Seventh Circuit in Baes-Sanchez, that, notwithstanding the Board of Immigration Appeals’ decision in Matter of Khan, Immigration Judges have jurisdiction to grant section 212(d)(3) waivers to U visa applicants under the plan language of 8 C.F.R. 1003.10(a). Id. at 1307 n.8. The decision made no reference to the Attorney General’s comment in his decision in Matter of Castro-Tum (see update below). As a result of the decision in Meridor, the Immigration Judges in cases arising in the jurisdiction of the Eleventh Circuit will join those in cases arising in the jurisdiction of the Seventh Circuit in exercising the authority to consider and grant 212(d)(3) waivers to U visa applicants. The Eleventh Circuit covers Alabama, Florida, and Georgia.

(Update: June 5, 2018): On May 17, 2018, U.S. Attorney General Jeff Sessions issued a far-reaching immigration precedent decision in Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018). At 27 I&N Dec. at 284 & n.6, the Attorney General expressed his disagreement with part of the Seventh Circuit’s reasoning in Baez-Sanchez v. Sessions, 872 F.3d 854, 855 (7th Cir. 2017). Specifically, he took the position that the Seventh Circuit was incorrect in its assessment of the scope of the authority of immigration judges under 8 C.F.R. 1003.10(b). Please see the relevant section of our article on Matter of Castro-Tum to learn more [see section]. We will provide further updates to the issue both in the text of this article and in our index article on Matter of Castro-Tum [see index].

Introduction and Overview: Baez-Sanchez v. Sessions

On October 6, 2017, the United States Court of Appeals for the Seventh Circuit issued a decision for publication in Baez-Sanchez v. Sessions, —- F.3d ——, (7th Cir. 2017) [PDF version]. In the decision, the Seventh Circuit declined to follow the published Board of Immigration Appeals (BIA) decision in Matter of Khan, 26 I&N Dec. 797 (BIA 2016) [PDF version] and held that Immigration Judges have the jurisdiction to grant a section 212(d)(3)(A)(ii) of the Immigration and Nationality Act (INA) waiver of inadmissibility to an alien who is applying for a U nonimmigrant visa.

The Board reached its conclusion in Matter of Khan by examining the statutes giving the Department of Homeland Security exclusive jurisdiction over U visa petitions and the special U visa waiver, in addition to other provisions of the INA. We examine the Board’s reasoning in great detail in our article on Matter of Khan [see article]. The Seventh Circuit had contrary precedent on the issue, having held in L.D.G. v. Holder, 744 F.3d 1022 (7th Cir. 2014) [PDF version] that immigration judges have jurisdiction to adjudicate section 212(d)(3)(A)(ii) waiver applications by U visa applicants. Normally, the Board would have to follow the Seventh Circuit rule in cases arising in the Seventh Circuit. However, the Board decided to apply Matter of Khan nationwide, including in cases arising in the Seventh Circuit, after determining that the Seventh Circuit had not examined the issue in detail or ruled that the statutes were unambiguous.

In this article, we will explore why the Seventh Circuit declined to follow Matter of Khan. Specifically, the court found the Board’s analysis in Matter of Khan unpersuasive, and faulted the Board for not addressing a regulation which delegates significant authority from the Attorney General to immigration judges. In short, the Seventh Circuit looked at the issue in a different way than the Board, and determined that the Board’s decision in Matter of Khan was entitled to administrative deference. However, the Seventh Circuit invited the Board to consider additional arguments made by the government in briefing in the instant case, suggesting that it may reevaluate the issue if the Board issues a new decision addressing those points.

It is worth noting that the Third Circuit has reached the same conclusion as the Board in Matter of Khan, meaning that there is now a split between the Third and Seventh circuits on the issue.

Please continue reading to learn about the Seventh Circuit decision in detail.

Issue

The case considers whether immigration judges have the authority to adjudicate section 212(d)(3)(A)(ii) waiver requests made in immigration proceedings by a petitioner for U nonimmigrant status. Section 212(d)(3)(A)(ii) provides for a limited waiver of inadmissibility for most inadmissibility grounds in section 212(a) of the INA for an alien seeking temporary admission as a nonimmigrant. The statute vests in the Attorney General the authority to grant waivers under section 212(d)(3)(A)(ii), and the Attorney General can, in turn, ordinarily delegates to immigration judges this discretionary authority to act.

U visa petitions may represent a special case however. Section 101(a)(15)(U) specifically accords the Secretary of Homeland Security jurisdiction over the adjudication of U visa petitions. Accordingly, requests for a special waiver related to the U visa category under section 212(d)(14) are made to the United States Citizenship and Immigration Services (USCIS), which acts under the delegated authority of the Secretary of Homeland Security. Accordingly, the Attorney General may only delegate his discretionary authority to grant a section 212(d)(14) waiver to the Secretary of Homeland Security. In finding that immigration judges lack the authority to adjudicate section 212(d)(3)(A)(ii) waiver requests by U visa applicants, Matter of Khan focused heavily on this issue of jurisdiction and the interplay of the different provisions and departments.

Seventh Circuit Opinion

Judge Frank Easterbrook wrote the opinion in Baez-Sanchez v. Sessions for a three-judge panel of the Seventh Circuit.

Background

Judge Easterbrook began by stating that “[t]his proceeding begins where L.D.G. v. Holder, 744 F.3d 1022 (7th Cir. 2014) ends.” In LDG the Seventh Circuit held that the Attorney General has the authority under section 212(d)(3)(A)(ii) to waive inadmissibility for an alien while he or she requests U nonimmigrant status from the Department of Homeland Security. Judge Easterbrook stated that the Seventh Circuit panel in LDG “assumed that, in removal proceedings, [Immigration Judges] may exercise all of the Attorney General’s discretionary powers over immigration.” He added that the panel had not provided justification because “the parties had not doubted its correctness.”

However, subsequent to LDG, the Board issued a published decision in Matter of Khan, 26 I&N Dec. 797 (BIA 2016). The Board took the position that Immigration Judges do not have the delegated authority to waive inadmissibility for a U visa applicant in immigration proceedings. We discuss the Board’s reasoning in detail in our full article on Matter of Khan [see article]. The United States Court of Appeals for the Third Circuit had reached the same conclusion as the Board weeks earlier in Sunday v. Attorney General of the United States of America, 832 F.3d 211 (3d Cir. 2016) [PDF version].

Normally, the Board is bound by the precedent of a circuit court in cases arising in the jurisdiction of that circuit. However, the Board opted to apply its precedent in Matter of Khan nationwide, including in cases arising in the jurisdiction for the Seventh Circuit. The Board reasoned that the Seventh Circuit did not conclude in LDG that the language of section 212(d)(3)(A)(ii) was unambiguous, and therefore the Board could provide its own interpretation that would be entitled to administrative deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) [PDF version], and Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982-85 (2005) [PDF version].

In the instant case, Baez-Sanchez requested a section 212(d)(3)(A)(ii) waiver from an Immigration Judge while he sought a U visa. However, the Immigration Judge applied Matter of Khan rather than the Seventh Circuit decision in LDG and held that he had no authority to grant the waiver request.

Analysis and Conclusion

Judge Easterbrook explained that the situations in which the Attorney General’s authority is delegated to immigration judges “is a matter of regulation,” and that these regulations are found “scattered through Title 8 of the Code of Federal Regulations (C.F.R.).” In Matter of Khan, the Board noted that LDG did not mention either 8 C.F.R. 235.2(d) or 1235.2(d). Judge Easterbrook acknowledged that assessment but explained that those regulations “concern the powers of District Directors rather than the powers of IJs.” He stated that the pertinent regulation, excerpted in the pertinent part below, is 8 C.F.R. 1003.10:

In briefing, the Attorney General (representing the Government in the instant case) noted that 8 C.F.R. 1003.10(b) “does not delegate to IJs the power to waive an alien’s availability.” Judge Easterbrook agreed, but he observed that it does state that “immigration judges shall act as the Attorney General’s delegates in the cases that come before them.” Judge Easterbrook read this provision as stating that an immigration judge may exercise all of the Attorney General’s powers when hearing cases “unless some other regulation limits that general delegation.” He stated that in Matter of Khan and Sunday, neither the Board nor the Third Circuit cited to any regulation limiting the scope of 8 C.F.R. 1003.10(a). Furthermore, neither the Board nor the Third Circuit even cited to 8 C.F.R. 1003.10(a) at all. Having found no limiting regulation itself, the Seventh Circuit panel in the instant case affirmed the previous Seventh Circuit holding in LDG that immigration judges may fully exercise the Attorney General’s powers over immigration.

In briefing, the Attorney General argued on behalf of the Government that he has no authority to grant waivers to aliens who are seeking U visas. The brief suggested that the Attorney General would only possess the authority with respect to aliens who seek such a waiver prior to entering the United States. This distinction would be significant in the instant case because Baez-Sanchez sought the waiver after he had already entered the United States.

Regarding the first argument — that the Attorney General has no authority to grant waivers to aliens who are seeking U visas — Judge Eastrbrook explained that it was based on 6 U.S.C. 271(b) and 557, which transferred certain immigration authorities of the Attorney General to the Secretary of Homeland Security upon the creation of the Department of Homeland Security. These immigration functions of the Department of Homeland Security had previously been under the authority of the Attorney General in the form of the former Immigration and Naturalization Service, which was part of the Department of Justice.

However, Judge Eastrbrook found the arguments in the Attorney General’s brief unavailing. First, he noted that section 271(b) transfers a specific set of powers to DHS. For reference, these powers are as follows:

1. Adjudications of immigrant visa petitions.
2. Adjudications of naturalization petitions.
3. Adjudications of asylum and refugee petitions.
4. Adjudications performed at service centers.
5. All other adjudications performed by the Immigration and Naturalization Service…

He noted that absent from this list was “wavers of inadmissibility,” and added that the statute cited to in the Attorney General’s brief, 6 U.S.C. 557, does not independently transfer powers. Judge Easterbrook acknowledged that the “Department of Homeland Security is principally responsible for administering the immigration laws,” but that “whether the statutory power to waive an alien’s inadmissibility belongs exclusively to the Secretary of Homeland Security depends on statutes, regulations, and reorganization plans that the briefs do not address.”

Judge Easterbrook noted that the Board had not relied on either 6 U.S.C. 271(b) or 557 in deciding Khan or in its handling of the Baez-Sanchez case on appeal from the immigration judge. Citing to the Supreme Court decision in SEC v. Cherney Corp., 318 U.S. 80, 87-88, 63 S.Ct 454 (1943), the Seventh Circuit decision explained that it could not reach a decision based upon the unexhausted claims advanced by the Attorney General in reliance on either of these statutes. The decision left the matter open on remand for consideration by the BIA.

Judge Easterbrook then addressed the Attorney General’s second argument in briefing, that an immigration judge may only grant a section 212(d)(3)(A)(ii) waiver to an alien who has yet to enter the United States. While he stated that this “was at least hinted at by the Board,” he found that the Board had not based its decision in Matter of Khan on this argument. Accordingly, the Seventh Circuit panel held that, like the issue involving the applicability of 6 U.S.C. 271(b) and 557, the Cherney decision precluded it from addressing whether the Attorney General can grant section 212(d)(3)(A)(ii) waivers to aliens already in the United States.

With all this in mind, the Seventh Circuit held that any arguments about whether the Board was entitled to administrative deference under Chevron and Brand X were “premature.” It held that “the Board must address and resolve the essential issues; only then can we consider whether the disposition lies within the scope of the [BIA’s] discretion.”

The Seventh Circuit remanded the case to the Board and stated that “[t]he board is free to address all these matters on remand, as it is also free to decide whether to exercise in favor of, or against, Baez-Sanchez whatever discretion the Attorney General possesses.”

Conclusion

In Baez-Sanchez, the Seventh Circuit found the Board’s analysis in Matter of Khan to be unpersuasive and ultimately affirmed its own decision in LDG. Notably, the Board and the Seventh Circuit approached the issue in very different ways while citing different statutes and regulations.

For the time being, Matter of Khan will not apply in cases arising in the jurisdiction of the Seventh Circuit, which encompasses Illinois, Indiana, and Wisconsin. This decision also creates what is called a “circuit split”: because the Seventh and Third Circuits have now reached inconsistent decisions on the same issue. Interestingly, the Government made several arguments in briefing in the instant case which were not ruled on by the Seventh Circuit because the Board had not addressed them previously, and the Seventh Circuit invited the Board to address these issues on remand. It will bear watching how the Board addresses the issues on remand and whether it decides to issue a new precedent decision in light of the Seventh Circuit’s negative treatment of Matter of Khan. We will update the site with more information on the issue as it becomes available.

To learn about other issues involving U nonimmigrant status, please see our full selection of articles on the subject [see category].