Meridor v. U.S. Attorney Gen.

• Decision Date: 07 June 2018
• Docket Number: No. 15-14569,15-14569
• Parties: Finest MERIDOR, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

891 F.3d 1302

Finest MERIDOR, Petitioner,
v.
U.S. ATTORNEY GENERAL, Respondent.

No. 15-14569

United States Court of Appeals, Eleventh Circuit.

June 7, 2018

Robert M. Bernstein, Erin E. Murphy, Kirkland & Ellis, LLP, Washington, DC, for Petitioner.

Finest Meridor, Pro Se.

Rachel Louise Browning, Juria L. Jones, OIL, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, Washington, DC, Michelle Ressler, District Counsel's Office, Miami, FL, for Respondent.

Before WILSON, JORDAN and HIGGINBOTHAM,^* Circuit Judges.

WILSON, Circuit Judge:

Finest Meridor, a native and citizen of Haiti, seeks review of the Board of Immigration Appeals’ (BIA) final order of removal. That order vacated the order of an immigration judge (IJ), which had granted Meridor a waiver of inadmissibility in his pursuit of a U visa. The BIA found that IJs did not have authority to grant such a waiver, and, even if they did, on the merits Meridor was not entitled to one. On appeal, Meridor argues that the plain language of 8 U.S.C. § 1182(d)(3)(A) gives IJs authority to grant waivers of inadmissibility. Meridor further argues that the BIA engaged in legal error in reaching its alternative holding that he did not merit a waiver.

Because the plain language of § 1182(d)(3)(A) does grant authority to IJs to issue waivers of inadmissibility, and because the BIA committed legal error in reaching its alternative holding on the merits, we grant the petition to review the final removal order, vacate it, and remand

891 F.3d 1304

for further proceedings. On remand, the BIA must reconsider its final order of removal, the IJ’s grant of a waiver of inadmissibility to Meridor pursuant to this plain language and the prohibition on de novo fact finding in its review of the IJ’s opinion.

I.

Finest Meridor arrived in the United States about 25 years ago as a political refugee from Haiti. Meridor and his sister fled Haiti for Guantanamo Bay, Cuba, and then boarded a military plane to Miami. Meridor applied for political asylum, but he withdrew his application after it lingered for many years.

In January 2013, the Department of Homeland Security (DHS) notified Meridor that he was subject to removal because he was a foreign national without a valid visa or passport, and because he had convictions for a crime of moral turpitude and controlled-substance offenses. DHS took him into custody pending his deportation hearing. Meridor applied for asylum and for withholding of removal while his case was pending.

After a hearing, an IJ agreed that Meridor was removable due to his prior convictions. The IJ also denied Meridor’s request for asylum and for withholding of removal. Meridor moved for reconsideration, but before the IJ ruled on his motion, Meridor retained new counsel who believed that Meridor might be able to qualify for a U visa¹ and therefore be able to stay in the United States.

Meridor applied for a U visa and for a waiver of inadmissibility² with DHS’s component agency, U.S. Citizenship and Immigration Services (USCIS). The IJ formally reopened Meridor’s file in light of his U visa application, which nullified his removal order to Haiti. Meridor moved to terminate his removal proceedings, and the IJ granted his motion.

While Meridor’s applications for the U visa and waiver were pending with USCIS, the IJ agreed to consider the merits of the waiver application. The IJ, acting as the Attorney General’s delegate, stated that she had jurisdiction over the waiver application. She explained that Meridor’s case was "extraordinary," and she therefore had discretion to grant him a waiver of inadmissibility.³ At a hearing, the IJ told Meridor that she would grant him a waiver of inadmissibility, and that she would do so in a written decision.

Before the IJ could issue a written opinion on the waiver, USCIS denied Meridor’s applications for a U visa and waiver of inadmissibility. USCIS noted in its denial letter that Meridor was not admissible into the United States, even though if he were, he appeared to meet all of the other U visa eligibility criteria. USCIS further noted that it would not exercise its discretion to approve his waiver as a matter of national

891 F.3d 1305

or public interest, and that he could not appeal the waiver decision.

Three weeks later, in February 2015, the IJ issued a written decision granting the waiver, finding that Meridor’s criminal history and his risk of harm if admitted were outweighed by his reasons for wanting to remain in the United States. She explained that Meridor wants to stay in the United States to support his family, and that his removal would result in extraordinary hardship to them. She also cited L.D.G. v. Holder , 744 F.3d 1022 (7th Cir. 2014), in concluding that she had authority to grant the waiver pursuant to § 1182(d)(3)(A). The IJ also noted that USCIS had authority to grant the waiver as well, pursuant to § 1182(d)(14). Because she had no authority to grant the U visa,⁴ however, the IJ entered an order removing Meridor to Haiti.⁵

The BIA, without distinguishing L.D.G. , reversed the IJ’s decision to grant the waiver, holding that DHS—and only DHS—can grant waivers of inadmissibility for U visa applications. It alternatively held that even if the IJ had jurisdiction to grant the waiver, Meridor did not merit such a waiver. The BIA explained that it disagreed with the IJ’s finding that Meridor’s risk of harm was "greatly diminished," and stated that Meridor’s reasons for wanting to remain in the United States did not outweigh his criminal history. The BIA, in turn, affirmed the IJ’s order of removal.

Meridor, proceeding pro se, petitioned us to review the BIA’s decision, and submitted an emergency motion to stay his removal pending resolution of his case. We denied his emergency motion. Meridor was removed to Haiti in February 2016, and in March 2016 we appointed him counsel.

Meanwhile, USCIS refused to reconsider its denial of Meridor’s first request for a waiver, and it refused to accord the IJ’s decision any weight because the BIA vacated her decision. USCIS also denied Meridor’s second request for a waiver, filed in March 2015. Because it denied his waiver, it in turn denied his second U visa application on the ground that Meridor was inadmissible.

II.

We review de novo issues concerning statutory interpretation of the immigration code, Al Najjar v. Ashcroft , 257 F.3d 1262, 1284 (11th Cir. 2001), but if the statute is ambiguous or silent on the issue before us, we will defer to the BIA’s interpretation if it is reasonable. Assa’ad v. U.S. Att’y Gen. , 332 F.3d 1321, 1326 (11th Cir. 2003). We only review the BIA’s decision, except to the extent it expressly adopts the IJ’s opinion. Al Najjar , 257 F.3d at 1284. The BIA errs if it reviews an IJ’s factual and credibility determination for anything but clear error. 8 C.F.R. § 1003.1(d)(3)(i).

Under 8 U.S.C. § 1182(d)(3)(A), enacted in 1952, an otherwise inadmissible foreign national "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

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