Daniela Guerra-Rocha v. William P. Barr

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 18‐3471

DANIELA E. GUERRA ROCHA, et al.,

Petitioners,

v.

WILLIAM P. BARR, Attorney General of the United States,

Respondent.

____________________

Petition for Review of an Order of the Board of Immigration Appeals.

Nos. A208‐575‐411, A208‐575‐412 and A208‐575‐413

____________________

ARGUED NOVEMBER 4, 2019 — DECIDED MARCH 4, 2020

____________________

Before WOOD, Chief Judge, and BAUER and BRENNAN,

Circuit Judges.

WOOD, Chief Judge. Daniela Guerra Rocha has filed a

petition for review of a decision of the Board of Immigration

Appeals (BIA or Board). The BIA held that Guerra Rocha

and her sons are subject to removal from the United States,

despite the fact that she has made a prima facie showing of

eligibility for nonimmigrant visa status. Because the BIA

failed to render a reasoned decision that accords with its

2 No. 18-3471

precedents, we grant Guerra Rocha’s petition and remand

for further proceedings.

I

Guerra Rocha openly entered the United States with her

two sons, Jovany and Carlos, in June 2016. She presented

herself at a point of entry in Arizona, asserting that she had

fled from persecution at the hands of Mexico’s Los Rojos

cartel. She sought asylum, and after passing a credible‐fear

interview, she was paroled into the United States while she

waited for an immigration hearing.

During that period, the family went to stay with a friend

named Lorenzo Torres, who lived in Chicago. As it turned

out, Torres was a violent drunk. He began to threaten

Guerra Rocha; later, the threats became abuse. During a

particularly frightening incident, a drunken Torres

brandished a machete at Guerra Rocha and her sons. A

group of neighbors witnessed the attack and called the

police, who arrested Torres. Because Guerra Rocha could no

longer remain in Torres’s apartment and she did not know

anyone else in Chicago, she and her sons relocated to Miami.

Soon after she moved, however, the Chicago police asked

her to return to assist the authorities with the case against

Torres. She agreed to do so. Still knowing no one in Chicago,

she stayed in a series of shelters for victims of domestic

violence. Throughout that time, she cooperated with the

police and ultimately testified at Torres’s criminal trial about

his violent propensities and the events that led to the assault.

In spite of Guerra Rocha’s testimony, the court acquitted

Torres.

No. 18‐3471 3

Guerra Rocha’s cooperation in the case entitled her to

apply for a “U visa,” which is a nonimmigrant visa that

allows a victim of a violent crime who provides assistance to

law enforcement to remain in the United States for four

years. 8 U.S.C. § 1101(a)(15)(U). United States Citizenship

and Immigration Services (USCIS), a component of the

Department of Homeland Security (DHS), administers the

U‐visa program. The U‐visa application process moves

slowly, with an average processing time of 52 months.

Nothing happened with respect to Guerra Rocha’s

asylum petition until, at a December 2016 hearing, an

immigration judge (IJ) found Guerra Rocha and her family

removable but granted a continuance to allow Guerra Rocha

to obtain counsel and to prepare an application for relief. She

took advantage of that opportunity. With the assistance of

counsel, she filed an application for asylum, withholding of

removal, and protection under the Convention Against

Torture (CAT) in February 2017. After a hearing, the IJ

continued the proceedings to December 15, 2017. Guerra

Rocha filed her application for the U visa on October 10,

2017, submitting all required documents including a

certification from the Chicago Police Department that

confirmed her assistance in the investigation into Torres. She

also filed petitions on behalf of her two sons as derivative

applicants.

Days after Guerra Rocha submitted her U‐visa

application, the immigration court surprised her by moving

up the date of her hearing from December 15 to October 20,

because the judge had been reassigned to a different court.

This sudden change left Guerra Rocha with only two days to

prepare for the hearing. On October 23, 2017, the IJ found

4 No. 18-3471

Guerra Rocha ineligible for any form of relief. The judge

determined that the threats Guerra Rocha had received from

Los Rojos did not amount to persecution and that she had

failed to show that she could not relocate to avoid the cartel.

Because Guerra Rocha had applied for the U visa less

than two weeks earlier, she had not yet received the receipts

for her applications at the time of the hearing. These receipts

were postmarked October 25, well in advance of the

originally scheduled December date of the hearing but after

the rescheduled date. Guerra Rocha’s counsel did not

mention the U‐visa petition at the October 20 hearing,

however, because he thought that it would be pointless

without the receipts in hand. Thus, the IJ did not evaluate

whether Guerra Rocha’s case should be continued during

the pendency of her U‐visa application.

In November, Guerra Rocha appealed the decision of the

IJ to the Board. Guerra Rocha asked the BIA to reverse the

IJ’s ruling on her asylum petition, and she sought a remand

to the IJ so that the judge could consider whether she was

entitled to a continuance on the ground that she was prima

facie eligible for U‐visa status. DHS opposed her motion to

remand, arguing that the U‐visa application was collateral to

the removal proceedings because (it insisted) an

immigration court cannot grant a U visa. We later made it

clear that the immigration court does have the power to

waive an alien’s inadmissibility, grant continuances, defer

removal, and take other similar steps that may be required

before a U visa is issued. We held “that 8 C.F.R. § 1003.10(a)

permits immigration judges to exercise all of the Attorney

General’s powers, except those expressly reserved by some

other regulation.” Baez‐Sanchez v. Barr, 947 F.3d 1033, 1035

No. 18‐3471 5

(7th Cir. 2020), citing Baez‐Sanchez v. Sessions, 872 F.3d 854

(7th Cir. 2017) (a case also dealing with the process for

obtaining a U visa).

The Board rejected all of Guerra Rocha’s arguments. It

affirmed the denial of her applications for asylum,

withholding of removal and protection under the CAT.

Additionally, it summarily dispensed with her request for a

remand in which she could seek a continuance in order to

pursue the U visa, writing cryptically that in light of all

relevant considerations, Guerra Rocha was not entitled to a

continuance. The Board additionally observed that Guerra

Rocha could still pursue an administrative stay of removal

from DHS during the pendency of the U‐visa petition.

Guerra Rocha’s petition for review raises only the BIA’s

determination that she is not entitled to a remand for the

purpose of deciding whether her pending U‐visa application

entitles her to a continuance.

II

A

Before we turn to the merits of this petition for review,

we say a brief word about our jurisdiction. (Neither party

mentioned this point, but we are obliged to satisfy ourselves

that jurisdiction is secure.) Guerra Rocha’s immediate

argument in this case is that the IJ should have granted her a

continuance. We have recognized that although 8 U.S.C.

§ 1252(a)(2)(B)(ii) prohibits review of issues that the statute

designates as discretionary, there are other circumstances in

which the denial of a continuance is reviewable. In Calma v.

Holder, 663 F.3d 868 (7th Cir. 2011), we noted the importance

of the relation between the resolution of a procedural

6 No. 18-3471

request, such as a motion for a continuance, and the

disposition of the underlying claim. Id. at 876. Judicial

review is barred if the disposition of the procedural motion

is, de facto, a decision on the merits of an issue that is made

unreviewable by law. Id.; see 8 U.S.C. § 1252(a)(2)(B) (listing

such issues). Nonetheless, following the guidance we

received in Kucana v. Holder, 558 U.S. 233 (2010), which held

that the jurisdiction‐stripping language of section

1252(a)(2)(B)(i) does not apply to actions of the Attorney

General made discretionary by regulation, we have held that

“Kucana … requires the review of denied continuances for

abuse of discretion.” Calma, 663 F.3d at 875. The government

argued for that standard of review in its brief here; it is

consistent with our decisions; and we see no reason to shift

course now.

We hasten to add that we are aware that the Supreme

Court has under consideration several cases that might

ultimately bear on this issue. They include Nasrallah v. Barr,

No. 18‐1432 (argued March 3, 2020), which raises the

question whether, notwithstanding 8 U.S.C. § 1252(C),

factual findings underlying denials of withholding or

deferral of removal are reviewable; Ovalles v. Barr, No. 18‐

1015 (argued December 9, 2019), which asks whether the

criminal alien bar contained in 8 U.S.C. § 1252(a)(2)(C)

prohibits a court from reviewing the agency’s assessment of

diligence for purposes of equitable tolling; and Guerrero‐

Lasprilla v. Barr, No. 18‐776 (argued December 9, 2019),

which raises the question whether a request for equitable

tolling is judicially reviewable as a question of law. It is

possible that one or more of the decisions in these cases may

bear on the issue before us, but none is squarely on point.

We think that the best course is to follow our own well

No. 18‐3471 7

established rule, unless and until the Supreme Court

instructs us otherwise.

B

The central issue before us is whether the BIA adequately

considered and applied its own precedents in disposing of

Guerra Rocha’s case. Under the REAL ID Act of 2005, we

have jurisdiction to review only constitutional claims and

questions of law on a petition to review an immigration

court’s decision. 8 U.S.C. § 1252(a)(2)(D). The BIA’s failure to

address the critical elements of a legal issue qualifies as a

reviewable question of law. Jawad v. Holder, 686 F.3d 400, 404

(7th Cir. 2012).

We review the BIA’s denial of a motion to remand for a

continuance under the abuse‐of‐discretion standard. Toure v.

Barr, 926 F.3d 403, 407 (7th Cir. 2019). A misstep that serious

occurs only when the Board makes its decisions without a

rational explanation, when it inexplicably departs from

established policies or when its decision rests on an

impermissible basis. Yi Xian Chen v. Holder, 705 F.3d 624, 630

(7th Cir. 2013). This standard encompasses a claim that the

Board misread its own precedent. Cruz‐Moyaho v. Holder, 703

F.3d 991, 997 (7th Cir. 2012). BIA decisions “must be

supported by a reasoned explanation that currently reflects

the law.” Moosa v. Holder, 644 F.3d 380, 386 (7th Cir. 2011).

The “brevity of [a BIA] decision” can give rise to an

inference that “the BIA committed legal error.” Iglesias v.

Mukasey, 540 F.3d 528, 532 (7th Cir. 2008).

The BIA’s decision Matter of Sanchez Sosa, 25 I. & N. Dec.

807 (B.I.A. 2012), is its last word on how an applicant for a

U visa may obtain a continuance. It instructs that the IJ must

8 No. 18-3471

first ask whether DHS supports or opposes the applicant’s

motion for a remand. If DHS does not oppose the motion,

then “the proceedings … should be continued … in the

absence of unusual, clearly identified, and supported

reasons for not doing so.” Id. at 813. If DHS does oppose the

motion, then the IJ’s primary concern should be “the

likelihood of success” of the application. Id. This involves an

evaluation of the applicant’s prima facie eligibility for the U

visa. If the applicant has shown that she is prima facie

eligible, then there is a rebuttable presumption that the IJ

should grant the continuance. Id. Only then should the judge

consider other factors, including “the length of time the

application has been pending, the number of prior

continuances that the court has provided, and additional

relevant considerations in deciding whether a further

continuance is warranted under the circumstances.” Id. at

815; see also Matter of Rajah, 25 I. & N. Dec. 127, 130 (B.I.A.

2009) (“As a general rule, there is a rebuttable presumption

that an alien who has filed a prima facie approvable

application with the USCIS will warrant a favorable exercise

of discretion for a continuance for a reasonable period of

time.”). Notably, the Attorney General does not dispute that

Guerra Rocha is prima facie eligible for a U visa.

The BIA performed only a cursory analysis of Guerra

Rocha’s case—one that fell considerably short of Sanchez

Sosa’s requirements. It dispensed with her argument in a

single sentence: “[C]onsidering all relevant factors, including

the DHS’s opposition to the motion, the collateral nature of

the relief sought through the U‐visa petition, the timing of

the request, and the likely delay of these administrative

proceedings, the respondent has not shown that a remand is

No. 18‐3471 9

warranted.” The BIA did not even mention the likelihood

that Guerra Rocha’s application would be granted.

This analysis was not sufficient. Although we have held

that the Board is not required to “write an exegesis on every

contention” in a particular case, it must nonetheless

“consider the issues raised and announce its decision in

terms sufficient to enable a reviewing court to perceive that

it has heard and thought and not merely reacted.” Mansour

v. INS, 230 F.3d 902, 908 (7th Cir. 2000) (quoting Becerra‐

Jimenez v. INS, 829 F.2d 996, 1000 (10th Cir. 1987)). The

boilerplate paragraph we just quoted does not meet that

standard. It totally ignores the most important question

identified in Sanchez Sosa: the likelihood that the applicant’s

U‐visa petition will be granted. If the Board believed that

Guerra Rocha’s request for a continuance was not warranted

even though her application for the U visa was prima facie

valid, it had to explain why it took that position. It is not

enough merely to announce that it has taken account of all

relevant factors.

The Attorney General urges that Sanchez Sosa must be

read in light of Matter of L‐A‐B‐R‐, 27 I. & N. Dec. 405 (B.I.A.

2018). We do not disagree with him, but we do not see how

Matter of L‐A‐B‐R‐ helps. It states that, when deciding

whether to grant a continuance, an immigration judge must

consider “germane secondary factors,” such as “the

respondent’s diligence in seeking collateral relief, DHS’s

position on the motion for continuance, and concerns of

administrative efficiency.” 27 I. & N. Dec. at 415; see also id.

(“[I]t may … be appropriate to consider the length of the

continuance requested, the number of hearings held and

continuances granted previously, and the timing of the

10 No. 18-3471

continuance motion.”) But Matter of L‐A‐B‐R‐ then restates

the core holding of Sanchez Sosa, that “[t]he likelihood that

the alien will receive the pursued collateral relief and that

such relief will materially affect the outcome of the removal

proceedings is the primary consideration” in the U‐visa

context. Id. at 415 (emphasis added). Thus, Matter of L‐A‐B‐R‐

does not cure the deficiencies in this record.

We have not been asked in this case to decide whether,

when all is said and done, an IJ could find that Guerra Rocha

is or is not entitled to a continuance, or a U visa, or asylum.

Nor do we offer any gratuitous opinion on those big

questions. Our only role is to ensure that the BIA handles

Guerra Rocha’s petition in accordance with the procedures

that the Board itself has established. And we must ensure

that the Board does not ignore its own precedents in

disposing of an immigrant’s application for relief or

announce that it has considered the legally relevant criteria

when it has not done so.

We are aware that the Board has an appalling workload

and an enormous backlog of cases. See, e.g., Amid

‘nightmarish’ case backlog, experts call for independent

immigration courts, ABA Journal (Aug. 9, 2019),

https://www.americanbar.org/news/abanews/aba‐news‐

archives/2019/08/amid‐_nightmarish‐case‐backlog‐‐experts‐

call‐for‐independent‐imm/. But Guerra Rocha has no control

over the pace at which USCIS processes applications.

Moreover, the backlog and slow processing time for U visas

do not suffice, under the Board’s own rules, to justify the

denial of a continuance. Matter of Sanchez Sosa, 25 I. & N.

Dec. at 814; see also Wu v. Holder, 571 F.3d 467, 470 (5th Cir.

2009) (holding that an immigration judge abused his

No. 18‐3471 11

discretion “in relying upon [a] delay … as the sole reason for

denying [a] motion for continuance”); Malilia v. Holder, 632

F.3d 598, 606 (9th Cir. 2011). The Board cannot solve its own

problems by arbitrarily denying petitions before it.

III

The BIA abused its discretion by disregarding the criteria

it committed itself to apply in Sanchez Sosa and Matter of L‐A‐

B‐R‐, when it refused to remand Guerra Rocha’s case to the

IJ for consideration of her request for a continuance. We

therefore GRANT Guerra Rocha’s petition and REMAND for

further proceedings consistent with this opinion.