In re Khan
| Decision Date | 08 September 2016 |
| Docket Number | Interim Decision #3870 |
| Parties | Matter of Safraz KHAN, Respondent |
| Court | U.S. DOJ 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
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
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 wassubsequently 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.
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
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 forU 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).
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 tosection 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.
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