KHAN

Cite as 26 I&N Dec. 797 (BIA 2016) Interim Decision #3870

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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