L.D.G. v. Holder

• Decision Date: 12 March 2014
• Docket Number: No. 13–1011.,13–1011.
• Citation: 744 F.3d 1022
• Parties: L.D.G., Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

744 F.3d 1022

L.D.G., Petitioner,

v.Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

No. 13–1011.

United States Court of Appeals,Seventh Circuit.

Argued Oct. 29, 2013.

Decided March 12, 2014.

Megan E. Thibert–Ind, Attorney, McDermott, Will & Emery, Charles Roth, Attorney, Chicago, IL, for Petitioner.

Anthony W. Norwood, Attorney, Oil, Attorney, Department of Justice, Washington, DC, for Respondent.

Before WOOD, Chief Judge, and KANNE and HAMILTON, Circuit Judges.

WOOD, Chief Judge.

This petition for review of a final order of removal is brought by L.D.G., the victim of a serious crime who was also convicted of a more mundane one. When L.D.G. applied for a U Visa in order to forestall her impending removal from the United States, U.S. Citizenship and Immigration Services (USCIS) refused to waive her statutory inadmissibility stemming from her uninspected entry and prior drug conviction. Facing certain removal, she asked the Immigration Judge (IJ) presiding over her removal proceedings to determine independently whether to waive her inadmissibility. The IJ declined and found that USCIS alone had jurisdiction to provide such a waiver. The Board of Immigration Appeals affirmed. We must now decide whether the IJ correctly declined jurisdiction, or if Congress has created concurrent jurisdiction under which both the Department of Justice and the Department of Homeland Security may grant waivers of inadmissibility to U Visa applicants who qualify for them.

I

We begin with a bit of background about the labyrinthine statutory structure that lies behind this appeal. Congress created the U Visa as part of the Victims of Trafficking and Violence Protection Act of 2000. See Pub.L. No. 106–386, 114 Stat. 1464 (2000). U Visas allow the victims of certain statutorily designated crimes who have suffered “substantial physical and mental abuse,” and who have been or are likely to be helpful to authorities in investigating or prosecuting that crime, to remain in the United States as lawful temporary residents despite being otherwise subject to removal. See 8 U.S.C. §§ 1101(a)(15)(U), 1184(p). The provision is designed to encourage noncitizen crime victims to come forward and help law enforcement investigate and prosecute their victimizers without fear of deportation. See New Classification for Victims of Criminal Activity; Eligibility for “U” Nonimmigrant Status, 72 Fed.Reg. 53014, 53014–15 (Sept. 17, 2007).

U Visas are not automatically granted to qualifying noncitizens. The decision whether to grant a U Visa is statutorily committed to the discretion of the Secretary of Homeland Security, see 8 U.S.C. § 1101(a)(15)(U), and is exercised through USCIS, an office within the Department of Homeland Security (DHS) and a successor to the now-defunct Immigration and Naturalization Service. The number of U Visas that can be issued annually is capped at 10,000, see 8 U.S.C. § 1184(p)(2)(A), and USCIS has filled that quota every year since it began issuing the visas in 2008. See News Release, U.S. Citizenship & Immigration Services, USCIS Approves 10,000 U Visas for 5th Straight Fiscal Year (Dec. 11, 2013), available at http:// www. uscis. gov/ news/ alerts/ uscis- approves- 10000- u- visas- 5 th- straightfiscal- year. The allowance fills quickly: for fiscal year 2014, it was reached in December 2013. Id.

Further complications arise for noncitizens who are inadmissible to the United States under 8 U.S.C. § 1182(a) when they apply for a U Visa. At this point, it is important to understand the conceptual difference between inadmissibility and removability. Removability is relatively straightforward: a noncitizen who is eligible for removal is, as the term implies, potentially subject to removal proceedings (once called deportation proceedings for people found within the United States). DHS initiates the removal process. It pursues it as an administrative proceeding within the Executive Office for Immigration Review (EOIR), an arm of the Department of Justice (DOJ). The removal proceeding is first heard by an IJ, with the possibility of appeal to the Board of Immigration Appeals (Board); a petition for review from a final order of removal can be brought to the court of appeals for the circuit in which the IJ's hearing took place, see 8 U.S.C. § 1252(a)(5), (b)(2), unless another statutory provision independently makes the order unreviewable. Inadmissibility is slightly different, although the grounds for removability and inadmissibility generally overlap for noncitizens who entered without inspection. The statute defines as “inadmissible” the classes of aliens who are ineligible for visas or admission to the United States. See 8 U.S.C. § 1182(a). As a practical matter, an inadmissible alien is not eligible to seek any of a number of statutory “outs” that allow a person to remain lawfully in the United States, such as an adjustment of status to permanent resident under 8 U.S.C. § 1255 or a nonimmigrant visa (of which a U visa is just one example). An inadmissible alien may, however, become eligible for some of these forms of relief if she successfully obtains a waiver of inadmissibility through one of the mechanisms found at 8 U.S.C. § 1182(d).

One section in particular is of interest here; it is always available for potential U Visa applicants in need of a waiver:

The Secretary of Homeland Security shall determine whether a ground of inadmissibility exists with respect to a nonimmigrant described in section 1101(a)(15)(U) of this title [governing U Visas]. The Secretary of Homeland Security, in the Attorney General's [ sic ] discretion, may waive the application of subsection (a) of this section ... in the case of a nonimmigrant described in section 1101(a)(15)(U) of this title, if the Secretary of Homeland Security considers it to be in the public or national interest to do so.

8 U.S.C. § 1182(d)(14). Though the statute mentions the “Attorney General's discretion,” this appears to be a codifier's error. Legislation amending the statute in 2006 replaced “Attorney General” with “Secretary of Homeland Security” everywhere it appeared in this section, and so the persistence of a reference to Attorney General is likely an inadvertent holdover from the original version of the U Visa statute. See Violence Against Women and Department of Justice Reauthorization Act of 2005, Pub.L. No. 109–162, 119 Stat. 2960 (Jan. 5, 2006).

When the U Visas were first created, discretion to grant both the visas themselves and section 1182(d)(14) waivers of inadmissibility was vested in the Attorney General. See Victims of Trafficking and Violence Protection Act, 114 Stat. 1464. The passage of the statute, however, predated the creation of the Department of Homeland Security. Primary responsibility for granting and denying both the visas and (d)(14) waivers was transferred to DHS in 2006, before any visas were issued. See Emergency Supplemental Appropriations Act for Defense, The Global War on Terror, and Tsunami Relief, Pub.L. No. 109–13, 119 Stat. 231 (May 11, 2005) (section 1182(d) waivers); Violence Against Women and Department of Justice Reauthorization Act of 2005, Pub.L. No. 109–162, 119 Stat. 2960 (Jan. 5, 2006) (U Visas). DHS regulations regarding the issuance of U Visas were completed in 2007, see 72 Fed.Reg. at 53014, and the first U Visa was issued in 2008, see USCIS News Release, supra.

Our description of the mechanics of obtaining a U Visa up to this point is generally uncontested. The plot thickens, however, when one realizes that there is a separate waiver provision in 8 U.S.C. § 1182(d)(3)(A), which reads as follows:

[A]n alien ... who is inadmissible under subsection (a) of this section ... but who is in possession of appropriate documents or is granted a waiver thereof and is seeking admission, may be admitted to the United States temporarily as a nonimmigrant in the discretion of the Attorney General.

This is the waiver provision that L.D.G. seeks to invoke.

Statutory references to the “Attorney General” include the EOIR (where both the IJs and the Board reside), which is a component of the Department of Justice. Cf., e.g., In re H–N–, 22 I. & N. Dec. 1039, 1043 (B.I.A.1999). We have interpreted section 1182(d)(3)(A) to permit an IJ to waive inadmissibility of a nonimmigrant. See, e.g., Atunnise v. Mukasey, 523 F.3d 830, 833 (7th Cir.2008). L.D.G.'s petition requires us to decide whether the IJ retains that power when a noncitizen seeks waiver of inadmissibility in order to obtain a U Visa, despite the more targeted U Visa waiver provision in section 1182(d)(14). With that background in mind, we are ready to turn to the facts of petitioner's case.

II

L.D.G. and her husband entered the United States from Mexico without inspection in 1987. They first settled in California, where they built a comfortable life and had four U.S. citizen children. In 2005, the family moved to Illinois in order to support L.D.G.'s brother-in-law, who was struggling with a drug problem. In January 2006, the family purchased and began to operate a restaurant, which by all accounts did fairly well during its first seven months.

The family members' lives changed dramatically one day in August 2006. A group of armed men entered the restaurant and kidnapped L.D.G. and her family, along with one of the restaurant's employees and a customer. The assailants were looking for L.D.G.'s brother-in-law. When the family could not provide information about his whereabouts, they were bound and blindfolded, and threatened with death and sexual assault. The hostages were taken to a private residence in another town, where the kidnappers sexually assaulted L.D.G's teenage daughter and severely beat her husband. The family was rescued only when police officers arrived several hours later. L.D.G. and her family assisted police in the subsequent investigation and prosecution of their kidnappers.

The family was too frightened to return to the restaurant...