Benitez v. Wilkinson, 20-1541

• Decision Date: 28 January 2021
• Docket Number: No. 20-1541,20-1541
• Citation: 987 F.3d 46
• Parties: Carlos Antonio Granados BENITEZ, Petitioner, v. Robert M. WILKINSON, Acting United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

987 F.3d 46

Carlos Antonio Granados BENITEZ, Petitioner,

v.Robert M. WILKINSON, Acting United States Attorney General,^* Respondent.

No. 20-1541

United States Court of Appeals, First Circuit.

January 28, 2021

Paige Austin, with whom Philip L. Torrey, Make the Road New York, and the Harvard Law School Crimmigration Clinic were on brief, for petitioner.

Brian D. Straw, Gregory E. Ostfeld, and Greenberg Traurig, LLP on brief for ASISTA Immigration Assistance, Asian Pacific Institute on Gender-Based Violence, National Coalition Against Domestic Violence, National Network to End Domestic Violence, Safe Horizon, and Tahirih Justice Center, amici curiae.

Christopher Bates, with whom Jeffrey Bossert Clark, Acting Assistant Attorney General, Linda S. Wernery, Assistant Director, and William C. Minick, Attorney, Office of Immigration Litigation, U.S. Department of Justice, were on brief, for respondent.

Before Lynch and Selya, Circuit Judges, and Laplante,^** District Judge.

LYNCH, Circuit Judge.

Petitioner Carlos Antonio Granados Benitez seeks review of the Board of Immigration Appeals' ("BIA" or "Board") denial of his motion to reopen his removal proceedings and to remand to the immigration judge ("IJ") for further consideration in light of the fact that he had been placed on a waiting list by United States Citizenship and Immigration Services ("USCIS") for a U-1 nonimmigrant visa ("U visa") pursuant to the Victims of Trafficking and Violence Protection Act ("VTVPA"), Pub. L. No. 106-386, § 1513(a)(2)(A), (b), 114 Stat. 1464 (2000) (codified as amended at 8 U.S.C. § 1101(a)(15)(U) ). Because we find that the BIA abused its discretion, in that it failed to render a reasoned decision that accords with its own precedent and policies, and it further failed to consider the position of its sister agency Immigration and Customs Enforcement ("ICE"), we grant the petition. In so holding we join the views of the Seventh Circuit in Guerra Rocha v. Barr, 951 F.3d 848, 852-54 (7th Cir. 2020).

I.

Granados Benitez is a citizen of Honduras who entered the United States in 2010 without being lawfully admitted or paroled. His wife and five-year-old daughter are US citizens. Granados Benitez says his wife suffers from a medical condition which prevents her from working and so he was the sole source of income for his family at least until his detention. In a letter, Granados Benitez's employer described him as "essential for the daily functioning" of the restaurant where he worked. His daughter's daycare also submitted a letter recounting the positive relationship Granados Benitez has with his daughter. St. Mary of the Isle Catholic Church submitted a letter confirming that Granados Benitez is a parishioner. The IJ credited Granados Benitez's testimony that he left Honduras to avoid pressure to participate in drug-trafficking activity, in part because of his strong religious convictions.¹

On November 29, 2018, the Department of Homeland Security ("DHS") issued Granados Benitez a Notice to Appear, charging him with removability for being present in the United States without being lawfully admitted or paroled. DHS began removal proceedings against him on December 6, 2018. Granados Benitez admitted the factual allegations in the Notice to Appear, but applied for asylum and protection under the Convention Against Torture.² The IJ found his claims credible, but nonetheless ordered his removal on May 15, 2019, because his allegations of mistreatment in Honduras did not rise to the level of past persecution, and Granados Benitez had not shown they were perpetrated on the basis of his protected characteristics. On June 6, 2019, Granados Benitez appealed the removal order to the BIA. The BIA dismissed his appeal on October 17, 2019.

While Granados Benitez's removal proceedings were ongoing, he filed a separate application to USCIS for a U visa.³

To promote greater cooperation with law enforcement, Congress passed the VTVPA, which permits USCIS to issue up to 10,000 U visas each fiscal year to aliens without legal status who are victims of a qualifying crime and substantially assist law enforcement in the investigation and prosecution of the offense. VPTA, Pub. L. No. 106-386, § 1513(a)(2)(A), (b), 114 Stat. 1464, 1533 (2000) (codified as amended at 8 U.S.C. § 1101(a)(15)(U) ). The Secretary of Homeland Security must determine that: (1) "[the visa applicant] has suffered substantial physical or mental abuse as a result of having been a victim of criminal activity described [elsewhere in the statute]"; (2) "[he or she] ... possesses information concerning criminal activity described [elsewhere in the statute]"; (3) "[he or she] ... has been helpful, is being helpful, or is likely to be helpful ... [in the] investigati[on] or prosecuti[on of] criminal activity described [elsewhere in the statute]"; and (4) "the criminal activity described [elsewhere in the statute] violated the laws of the United States or occurred in the United States ... or the territories and possessions of the United States." 8 U.S.C. § 1101(a)(15)(U)(i).

Because of the statutory cap, many people who are otherwise eligible to receive a U visa in a given fiscal year are unable to do so. 8 U.S.C. § 1184(p)(2). USCIS reports, for example, that:

At the end of 2019, there were nearly 152,000 pending principal [U visa] petitions and nearly 104,000 pending petitions for family members. Because the number of individuals issued principal [U visas] or provided principal U-1 nonimmigrant status in any fiscal year cannot exceed 10,000, the wait time for a principal petitioner to receive a final decision (and status, if approved) is currently 5-10 years ....

USCIS, U Visa Filing Trends: Analysis of Data through FY 2019, 3 (2020) (footnote omitted), https://www.uscis.gov/sites/default/files/document/reports/Mini_U_Report-Filing_Trends_508.pdf. USCIS will add people who are unable to receive a U visa solely because of the statutory cap to a waitlist, and will defer removal proceedings for those individuals. USCIS, Adjudicator's Field Manual ("Field Manual") § 39.1(d)(2) (2008), https://www.uscis.gov/sites/default/files/document/policy-manual-afm/afm39-external.pdf.⁴

On June 12, 2017, Granados Benitez was the victim of an armed robbery near his home in Island Park, New York.⁵ As defined by New York law, armed robbery is a qualifying offense under the VTVPA. See 8 U.S.C. § 1101(a)(15)(U)(iii) ; N.Y. Penal Law § 120.00(1) (McKinney); see also id. § 10.00(9). Granados Benitez cooperated with law enforcement and assisted with the prosecution of his attackers. The Nassau County Police Department submitted a certification attesting to his cooperation in the investigation and prosecution of his attack, and on July 19, 2019, shortly after receiving the certification, Granados Benitez filed a petition for U nonimmigrant status with USCIS.

On September 23, 2019, USCIS sent Granados Benitez a letter stating:

At this time, the evidence submitted with your petition appears to demonstrate that you have established the eligibility requirements for U nonimmigrant status. However, the statutory cap for U-1 nonimmigrant status has been reached for this fiscal year. ... As the fiscal year limit is the sole reason you cannot be granted U-1 nonimmigrant status, your petition is being placed on a waiting list. (Emphasis added.)

USCIS also granted Granados Benitez deferred action, meaning that it would not attempt to proceed with deportation proceedings until it revoked the deferred action protection. See Lopez-Reyes v. Gonzales, 496 F.3d 20, 22 (1st Cir. 2007). The information about Granados Benitez's USCIS petition was not available to the IJ at Granados Benitez's initial merits hearing, or to the Board in Granados Benitez's appeal because Granados Benitez did not receive his waitlist determination until the appeal was under consideration.

On November 12, 2019, Granados Benitez timely filed with the BIA a "Motion to Reopen and Remand Case" to the IJ based on his USCIS waitlist letter. He requested "that his case be reopened and [the] removal order vacated in light of a grant of deferred action from [USCIS] because [Granados Benitez] has demonstrated eligibility for U nonimmigrant status." He stated that "[d]eportation [s]hould be [s]tayed and the [c]ase [r]eopened and [r]emanded because Mr. Granados was [p]laced on the U [n]onimmigrant [v]isa [w]aitlist." He also raised other arguments relating to his wife's I-130 petition and his request for voluntary departure. He asked the BIA to reopen the case and remand to the IJ for further consideration of those issues. Granados Benitez did not request termination of his removal proceedings at any point in the motion.

On April 30, 2020, the BIA issued a decision, captioned "APPLICATION: Reopening; stay; voluntary departure." It stated that "under the circumstances presented with the motion, we do not find that reopening of these proceedings is appropriate." The BIA ordered that "[t]he motion and stay request are denied." It gave two reasons for its denial of the portion of Granados Benitez's motion relating to his U visa application. First, the BIA claimed it could only reopen Granados Benitez's case if the U visa was granted. It stated, "[t]he regulations permit an alien to file a motion to reopen and terminate proceedings upon approval of U nonimmigrant status.... In this case, the respondent has not been approved for U nonimmigrant status." It purported to rely on language in 8 C.F.R. § 214.14(c)(5)(i), which states:

[When an application for a U visa is granted] [a] petitioner who is subject to an order of exclusion, deportation, or removal issued by an immigration judge or the Board may seek cancellation of such order by filing, with the immigration judge or the Board, a motion to reopen and terminate removal proceedings.

Second, the BIA weighed the fact that Granados Benitez could pursue his U visa application in spite of the removal order. It stated, "[Granados Benitez] is not...