Matter of KHAN, 26 I&N Dec. 797 (BIA 2016) waiver of inadmissibility


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Matter of Safraz KHAN, Respondent

Decided September 8, 2016

U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals

Immigration Judges do not have authority to adjudicate a request for a waiver of
inadmissibility under section 212(d)(3)(A)(ii) of the Immigration and Nationality Act,
8 U.S.C. § 1182(d)(3)(A)(ii) (2012), by a petitioner for U nonimmigrant status.

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 section 212(d)(3)(A)(ii) of the
Immigration and Nationality Act, 8 U.S.C. § 1182(d)(3)(A)(ii) (2012), but
she denied the waiver as a matter of discretion and ordered the respondent
removed from the United States. The respondent has appealed from that
decision. The Department of Homeland Security (“DHS”) opposes the
appeal and argues that the Immigration Judge erred in assuming jurisdiction
over the respondent’s waiver request. The appeal will be dismissed.1

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

1 We appreciate the parties’ submission of supplemental briefs in support of their
positions on appeal.
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subsequently placed into removal proceedings by a notice to appear
charging him with being removable under section 237(a)(2)(A)(iii) of the
Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2012), as an alien convicted of sexual
abuse of a minor, which is an aggravated felony under section
101(a)(43)(A) of the Act, 8 U.S.C. § 1101(a)(43)(A) (2012).
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 section 101(a)(15)(U) of the Act from the
United States Citizenship and Immigration Services (“USCIS”). He filed a
Petition for U Nonimmigrant Status (Form I-918) on October 19, 2012, and
an Application for Advance Permission to Enter as a Nonimmigrant (Form
I-192) on November 19, 2012. On June 4, 2013, the Immigration Judge
administratively closed the case pending adjudication of the respondent’s
petition for U nonimmigrant status. The DHS filed an interlocutory appeal.
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 section 212(d)(3)(A)(ii) of the Act from the Immigration Judge.
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.
2 In Matter of Sanchez Sosa, 25 I&N Dec. at 811, we stated that “[t]he USCIS has
exclusive jurisdiction over U visa petitions and applications for adjustment of status
under section 245(m) of the Act[, 8 U.S.C. § 1255(m) (2006)].” The Immigration Judge
interpreted this statement as implicitly permitting an Immigration Judge to have
concurrent jurisdiction over a section 212(d)(3)(A) waiver, which she considered to be
separate from the petition and the adjustment application. We disagree that Matter of
Sanchez Sosa supports such a conclusion, because we did not specifically address that
issue.
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II. ISSUE

The 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 Act by a petitioner for U nonimmigrant status.3

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 section 101(a)(15)(U) of the Act.
Section 214(p) of the Act, 8 U.S.C. § 1184(p) (2012); 8 C.F.R.
§ 214.14(c)(1) (2016); see also Matter of G-K-, 26 I&N Dec. 88, 93
(BIA 2013); Matter of Sanchez Sosa, 25 I&N Dec. at 811. To establish
prima facie eligibility for U nonimmigrant status, the petitioner must
present, inter alia, a law enforcement certification from an appropriate law
enforcement authority and, if necessary, an application for a waiver of
inadmissibility, as part of the evidentiary submission to the USCIS. See
Matter of Sanchez Sosa, 25 I&N Dec. at 811; 8 C.F.R. §§ 214.14(b), (c)(2).
Aliens seeking to apply for U nonimmigrant status, including those in
removal proceedings, must file a petition on a Form I-918 directly with the
USCIS. 8 C.F.R. § 214.14(c)(1).
Only petitioners who are admissible to the United States or who have
been granted a waiver of inadmissibility by the USCIS are eligible for

3 Section 212(d)(3)(A) of the Act provides in pertinent part as follows:

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.

This waiver was previously at former section 212(d)(3)(B) of the Act, 8 U.S.C.
§ 1182(d)(3)(B) (2000), until it was redesignated by section 104 of the REAL ID Act of
2005, Division B of Pub. L. No. 109-13, 119 Stat. 302, 309.
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U nonimmigrant status. See section 212(d)(14) of the Act; 4 8 C.F.R.
§§ 212.17(a), 214.1(a)(3)(i), 214.14(c)(2)(iv) (2016). Congress enacted
section 212(d)(14) of the Act to provide a waiver of inadmissibility
specifically for petitioners for U nonimmigrant status. New Classification
for Victims of Criminal Activity; Eligibility for “U” Nonimmigrant Status,
72 Fed. Reg. 53,014, 53,021 (Sept. 17, 2007) (Supplementary Information).
Under this provision, only the Secretary of Homeland Security has the
discretion to waive grounds of inadmissibility for such petitioners.
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. 8 C.F.R.
§§ 212.17(a), 214.14(c)(2)(iv); see also Matter of Sanchez Sosa, 25 I&N
Dec. at 811. As the delegate of the Secretary of Homeland Security, the
USCIS evaluates the petitioner’s application to determine whether it is in
the public or national interest to waive inadmissibility in the exercise
of discretion. In cases involving violent or dangerous crimes or
inadmissibility relating to national security issues, the USCIS may exercise
its discretion to waive inadmissibility only in extraordinary circumstances.
8 C.F.R. § 212.17(b)(2). The decision of the USCIS (or the Secretary of
Homeland Security) is not appealable, but the petitioner is not precluded
from re-filing a request for a waiver in appropriate cases. 8 C.F.R.
§ 212.17(b)(3).

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
4 Section 212(d)(14) of the Act provides as follows:

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.
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section 212(d)(3)(A)(ii). 5 See Form I-192: Application for Advance
Permission to Enter as Nonimmigrant, https://www.uscis.gov/i-192.
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
8 C.F.R. §§ 212.4(b), 235.2(d), 1212.4(b), and 1235.2(d) (2016). These
regulations provide that an application for the exercise of discretion may be
submitted on a Form I-192 to the district director in charge of the alien’s
arrival in the United States and that an alien may renew his or her
application before the Immigration Judge in the context of a deferred
inspection after the waiver has been denied at the port of entry. According
to 8 C.F.R. §§ 212.4(b) and 1212.4(b),
5 In addition, an alien who is outside the United States may apply for a waiver at a
United States consulate pursuant to section 212(d)(3)(A)(i) of the Act.
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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 8 C.F.R. §§ 235.2(d) and
1235.2(d), which provide that “[r]efusal of a district director . . . to grant an
application for the benefits of . . . section 212(d)(3) . . . of the Act, shall be
without prejudice to the renewal of such application or the authorizing of
such admission by the immigration judge without additional fee.” When
viewed together, the regulations limit the Immigration Judge’s authority to
adjudicate an inadmissible nonimmigrant’s request for a section
212(d)(3)(A)(ii) waiver to narrow and specific circumstances that are
inapplicable to a petitioner for U nonimmigrant status. Thus, the regulatory
scheme for waivers sought by arriving aliens in the deferred inspection
context is different from the regulatory scheme applicable for waivers
sought by petitioners for U nonimmigrant status. While L.D.G. discussed
many of the regulations relevant to the U visa, it did not address 8 C.F.R.
§§ 235.2(d) and 1235.2(d). Thus, L.D.G. does not purport to invalidate or
undermine these regulations or the regulatory scheme they outline.
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

6 The regulations at 8 C.F.R. §§ 212.4(b) and 1212.4(b) are outdated because they are
entitled “Applications under section 212(d)(3)(B)” and make references to that former
waiver provision and other sections of the Act that have been redesignated. However, the
substance of the regulations make clear that they actually apply to the current waiver at
section 212(d)(3)(A)(ii) of the Act. Further, the instructions for the Form I-192 state,
inter alia, that the regulatory basis for the form is at 8 C.F.R. § 212.4(b). See generally
8 C.F.R. § 103.2(a)(1) (2016) (providing that every benefit request submitted to the DHS
must be executed and filed in accordance with the form instructions and that such
instructions are incorporated into the relevant regulations).
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U nonimmigrant status is physically in the United States and is therefore
not subject to deferred inspection during which a CBP or designated
immigration official may deny the waiver at a port of entry, it follows that
Immigration Judges lack the authority to consider a request by a petitioner
for U nonimmigrant status for a waiver under section 212(d)(3)(A)(ii) of
the Act.
Contrary to the Seventh Circuit’s interpretation, the powers and duties
of Immigration Judges to conduct removal hearings under section 240 of
the Act, 8 U.S.C. § 1229a (2012), and any other proceedings, is only that
authority delegated to them by the Act and by the Attorney General through
regulation. Section 103(g) of the Act, 8 U.S.C. § 1103(g) (2012); see also
section 101(b)(4) of the Act (defining the term “Immigration Judge” as “an
attorney whom the Attorney General appoints as an administrative judge
. . . [to] perform such duties as the Attorney General shall prescribe”);
Matter of G-K-, 26 I&N Dec. at 93 (noting that the jurisdiction of the Board
and the Immigration Judge is limited by statute and regulation to that which
has been delegated by the Attorney General); Matter of Avetiysan, 25 I&N
Dec. 688, 691 (BIA 2012) (“In conducting proceedings, an Immigration
Judge exercises the powers and duties delegated by law and by the Attorney
General of the United States through regulation.”); 8 C.F.R. § 1003.10
(2016).
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
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212(d)(14) clearly provides that the Secretary of Homeland Security has
sole jurisdiction to adjudicate waivers of inadmissibility for petitioners for
U nonimmigrant status.
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
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waiver of inadmissibility for a petitioner for U nonimmigrant status was
“ambiguous.” Id. at 1031.
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.

 

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