Jimenez-Rodriguez v. Garland

• Decision Date: 29 April 2021
• Docket Number: No. 19-2467,19-2467
• Citation: 996 F.3d 190
• Parties: Victor Antonio JIMENEZ-RODRIGUEZ, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

996 F.3d 190

Victor Antonio JIMENEZ-RODRIGUEZ, Petitioner,

v.Merrick B. GARLAND, Attorney General, Respondent.

No. 19-2467

United States Court of Appeals, Fourth Circuit.

Argued: January 27, 2021

Decided: April 29, 2021

ARGUED: Bradley Bruce Banias, WASDEN BANIAS LLC, Mount Pleasant, South Carolina, for Petitioner. Robert Dale Tennyson, Jr., UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Joseph H. Hunt, Assistant Attorney General, Carl McIntyre, Assistant Director, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Before GREGORY, Chief Judge, WYNN, and HARRIS, Circuit Judges.

Petition for review granted, vacated and remanded by published opinion. Chief Judge Gregory wrote the opinion, in which Judge Wynn and Judge Harris joined.

GREGORY, Chief Judge:

After being placed in removal proceedings, Victor Jimenez-Rodriguez sought a U visa, which would have allowed him to remain in the United States lawfully as a temporary resident. But Jimenez-Rodriguez could not acquire the visa without a waiver of inadmissibility. He requested that waiver from U.S. Citizenship and Immigration Services ("USCIS"), and USCIS denied the request. After the immigration judge ("IJ") ordered removal, Jimenez-Rodriguez argued before the Board of Immigration Appeals ("BIA") that the IJ erred by denying him a continuance and that Jimenez-Rodriguez should be allowed to renew his request for an inadmissibility waiver before the IJ. The BIA rejected those claims and affirmed the order of removal. We grant the petition and remand for further proceedings, as we conclude that the Department of Justice's regulations empower the IJ to consider Jimenez-Rodriguez's application for an inadmissibility waiver under 8 U.S.C. § 1182(d)(3)(A)(ii).

I.

Victor Jimenez-Rodriguez is a Mexican national and citizen. When he was ten years old, his parents brought him into the United States without lawful status on January 15, 2001. He has lived in this country ever since. Because he is undocumented, he lacked the paperwork that would enable him to seek employment. So to apply for a job and provide for his family, he purchased a fake ID from a friend. But he was caught—and charged with identity theft. Jimenez-Rodriguez pleaded guilty and was sentenced to ten to twelve months in prison. After he served his sentence, U.S. Immigrations and Customs Enforcement detained him and placed him in removal proceedings.

During his initial proceedings, Jimenez-Rodriguez was released on bond. One day, Jimenez-Rodriguez was riding in the passenger seat of his friend's vehicle when a semi-truck crashed into their car on the interstate. The collision injured Jimenez-Rodriguez and killed his friend. As the only eyewitness to this tragic incident, Jimenez-Rodriguez cooperated fully with law enforcement and assisted them in prosecuting the truck driver for vehicular homicide.

Due to these events, Jimenez-Rodriguez informed the IJ that he intended to obtain temporary lawful residency through a U visa as the victim of a serious crime cooperating with law enforcement in prosecuting the offender. See 8 U.S.C. § 1101(a)(15)(U). Because Jimenez-Rodriguez is considered "inadmissible" under the INA—which renders him ineligible for a U visa, 8 U.S.C. § 1182(a) —he submitted to USCIS an application for a waiver of inadmissibility alongside his petition for the visa. Given the pending U visa petition, the IJ continued Jimenez-Rodriguez's removal proceedings several times to give him the chance obtain the visa. In an April 2015 hearing before the IJ, Jimenez-Rodriguez's attorney stated that he had been contacted by a Government employee informing him that Jimenez-Rodriguez's U visa had received prima facie approval. In a follow-up hearing a few days later, the Government represented that it found no documentation confirming this, though it observed that notes in its internal database "indicate that there is an approval." A.R. 71–74. Consequently, the IJ administratively closed Jimenez-Rodriguez's removal proceedings until the resolution of his visa petition.

But, two years later, USCIS denied Jimenez-Rodriguez a waiver of inadmissibility, rendering him ineligible for the U visa. The Government subsequently reopened Jimenez-Rodriguez's removal proceedings, where Jimenez-Rodriguez appeared with a new lawyer. During those proceedings, his lawyer asked for no relief other than a continuance "to review the case file," as he "still [didn't] know all the facts in this case[.]" A.R. 93.

The IJ entered a final order of removal, denying the request for a continuance for failure to show good cause. Following the order, the IJ issued a written statement of facts and law. After explaining that continuances may be granted only for good cause, and listing the several factors that inform that determination, the IJ cited Lendo v. Gonzales , 493 F.3d 439, 441 (4th Cir. 2007), to conclude that it was not an abuse of discretion to refuse to an open-ended continuance based on the speculative possibility that a pending application before USCIS would be approved. Additionally, the IJ explained that Jimenez-Rodriguez had been "afforded numerous continuances to await the USCIS’ adjudication" of his U visa petition. Id. But because USCIS denied Jimenez-Rodriguez's U visa petition, the IJ found that Jimenez-Rodriguez was "not prima facie eligible" for adjustment of status and therefore did not meet his burden to show good cause for another continuance. Id.

Jimenez-Rodriguez appealed to the BIA. He argued that: (1) the IJ erred by denying his request for a continuance due to the pending request for reconsideration of the waiver denial; and (2) the case should be remanded to permit him to present a new waiver application directly to the IJ under 8 U.S.C. § 1182(d)(3)(A)(ii).

The BIA affirmed the IJ's order and rejected Jimenez-Rodriguez's request to remand. Addressing the denial of a continuance, the BIA observed that "counsel had ample time to familiarize himself with the respondent's case and his request for more time to review his file does not represent good cause." Id. Additionally, the BIA noted that because "USCIS had denied an [inadmissibility waiver] application based on adverse factors, it was not unreasonable for the Immigration Judge to find a lack of prima facie eligibility for relief from USCIS." A.R. 3–4 (citing Matter of L-A-B-R- , 27 I. & N. Dec. 405, 413–15 (A.G. 2018) ). The BIA also rejected Jimenez-Rodriguez's request for a remand to seek an inadmissibility waiver directly from the IJ. In doing so, it cited Matter of Khan , 26 I. & N. Dec. 797 (BIA 2016), which determined that IJs have the authority to grant inadmissibility waivers under § 1182(d)(3)(A)(ii) only in limited circumstances not applicable to a U visa applicant.

Jimenez-Rodriguez timely appealed to this Court. This Court has jurisdiction over Jimenez-Rodriguez's petition for review of a final order of removal under 8 U.S.C. § 1252(a)(1), (a)(5).¹

II.

"When, as here, the BIA affirms the IJ's decision with an opinion of its own, we review both decisions." Alvarez Lagos v. Barr , 927 F.3d 236, 248 (4th Cir. 2019). "This Court reviews de novo the legal conclusions of the BIA, including issues of regulatory construction," though we defer to the agency's interpretation when appropriate. Romero v. Barr , 937 F.3d 282, 290 (4th Cir. 2019).

A.

U visas allow a noncitizen to remain in the United States as a lawful temporary resident if that person has suffered "substantial physical or mental abuse" as the victim of a serious crime and has cooperated with law enforcement to investigate or prosecute the offender. 8 U.S.C. §§ 1101(a)(15)(U), 1184(p). If the noncitizen is inadmissible, however, that person must obtain a waiver of inadmissibility in order to obtain a U visa. 8 C.F.R. § 214.1(a)(3)(I). There is no question that a U visa applicant may request a waiver of inadmissibility from USCIS. See 8 U.S.C. § 1182(d)(14) ; 8 C.F.R. § 212.17. The issue presented here is whether an IJ may grant such a waiver.

IJs are "creatures of statute, receiving some of their powers and duties directly from Congress, and some of them by subdelegation from the Attorney General." Lopez–Telles v. INS , 564 F.2d 1302, 1303 (9th Cir. 1977) ; see also 8 U.S.C. § 1101(b)(4) (defining an "immigration judge" as an "administrative judge within the Executive Office for Immigration Review, qualified to conduct specified classes of proceedings" who "shall perform such duties as the Attorney General shall prescribe"); 8 C.F.R. § 1001.1(l) (same). Jimenez-Rodriguez identifies no statutory provision that expressly empowers IJs to grant a waiver of inadmissibility in this case. Rather, Jimenez-Rodriguez contends that the plain text of 8 U.S.C. § 1182(d)(3)(A)(ii) gives the Attorney General the discretion to grant requests for inadmissibility waivers—and that IJs, as the Attorney General's delegated representatives, share that same authority.

As a threshold matter, the Government argues that § 1182(d)(3)(A)(ii) does not empower the Attorney General to issue inadmissibility waivers in this context. But under Chenery , we review an agency's decision "solely by the grounds invoked by the agency." SEC v. Chenery Corp. , 318 U.S. 80, 87–88, 63 S.Ct. 454, 87 L.Ed. 626 (1943). Here, the BIA did not discuss § 1182(d)(3)(A)(ii) or the Attorney General's authority when affirming the final order of removal. Instead, the BIA justified its decision by citation to Matter of Khan , 26 I. & N. Dec. at 797. In Matter of Khan , the BIA assumed that § 1182(d)(3)(A)(ii) authorized the Attorney General to issue inadmissibility waivers, reasoning that "even if the Attorney General has this waiver authority regarding U visas, we cannot conclude that such authority extends to Immigration Judges[.]" Id. at 801. Thus, because the BIA did not base its decision on the interpretation of § 1182(d)(3)(A)(ii), and because our...