Daniela Guerra-Rocha v. William P. Barr ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18‐3471
DANIELA E. GUERRA ROCHA, et al.,
Petitioners,
v.
WILLIAM P. BARR, Attorney General of the United States,
Respondent.
____________________
Petition for Review of an Order of the Board of Immigration Appeals.
Nos. A208‐575‐411, A208‐575‐412 and A208‐575‐413
____________________
ARGUED NOVEMBER 4, 2019 — DECIDED MARCH 4, 2020
____________________
Before WOOD, Chief Judge, and BAUER and BRENNAN,
Circuit Judges.
WOOD, Chief Judge. Daniela Guerra Rocha has filed a
petition for review of a decision of the Board of Immigration
Appeals (BIA or Board). The BIA held that Guerra Rocha
and her sons are subject to removal from the United States,
despite the fact that she has made a prima facie showing of
eligibility for nonimmigrant visa status. Because the BIA
failed to render a reasoned decision that accords with its
2 No. 18-3471
precedents, we grant Guerra Rocha’s petition and remand
for further proceedings.
I
Guerra Rocha openly entered the United States with her
two sons, Jovany and Carlos, in June 2016. She presented
herself at a point of entry in Arizona, asserting that she had
fled from persecution at the hands of Mexico’s Los Rojos
cartel. She sought asylum, and after passing a credible‐fear
interview, she was paroled into the United States while she
waited for an immigration hearing.
During that period, the family went to stay with a friend
named Lorenzo Torres, who lived in Chicago. As it turned
out, Torres was a violent drunk. He began to threaten
Guerra Rocha; later, the threats became abuse. During a
particularly frightening incident, a drunken Torres
brandished a machete at Guerra Rocha and her sons. A
group of neighbors witnessed the attack and called the
police, who arrested Torres. Because Guerra Rocha could no
longer remain in Torres’s apartment and she did not know
anyone else in Chicago, she and her sons relocated to Miami.
Soon after she moved, however, the Chicago police asked
her to return to assist the authorities with the case against
Torres. She agreed to do so. Still knowing no one in Chicago,
she stayed in a series of shelters for victims of domestic
violence. Throughout that time, she cooperated with the
police and ultimately testified at Torres’s criminal trial about
his violent propensities and the events that led to the assault.
In spite of Guerra Rocha’s testimony, the court acquitted
Torres.
No. 18‐3471 3
Guerra Rocha’s cooperation in the case entitled her to
apply for a “U visa,” which is a nonimmigrant visa that
allows a victim of a violent crime who provides assistance to
law enforcement to remain in the United States for four
years. 8 U.S.C. § 1101(a)(15)(U). United States Citizenship
and Immigration Services (USCIS), a component of the
Department of Homeland Security (DHS), administers the
U‐visa program. The U‐visa application process moves
slowly, with an average processing time of 52 months.
Nothing happened with respect to Guerra Rocha’s
asylum petition until, at a December 2016 hearing, an
immigration judge (IJ) found Guerra Rocha and her family
removable but granted a continuance to allow Guerra Rocha
to obtain counsel and to prepare an application for relief. She
took advantage of that opportunity. With the assistance of
counsel, she filed an application for asylum, withholding of
removal, and protection under the Convention Against
Torture (CAT) in February 2017. After a hearing, the IJ
continued the proceedings to December 15, 2017. Guerra
Rocha filed her application for the U visa on October 10,
2017, submitting all required documents including a
certification from the Chicago Police Department that
confirmed her assistance in the investigation into Torres. She
also filed petitions on behalf of her two sons as derivative
applicants.
Days after Guerra Rocha submitted her U‐visa
application, the immigration court surprised her by moving
up the date of her hearing from December 15 to October 20,
because the judge had been reassigned to a different court.
This sudden change left Guerra Rocha with only two days to
prepare for the hearing. On October 23, 2017, the IJ found
4 No. 18-3471
Guerra Rocha ineligible for any form of relief. The judge
determined that the threats Guerra Rocha had received from
Los Rojos did not amount to persecution and that she had
failed to show that she could not relocate to avoid the cartel.
Because Guerra Rocha had applied for the U visa less
than two weeks earlier, she had not yet received the receipts
for her applications at the time of the hearing. These receipts
were postmarked October 25, well in advance of the
originally scheduled December date of the hearing but after
the rescheduled date. Guerra Rocha’s counsel did not
mention the U‐visa petition at the October 20 hearing,
however, because he thought that it would be pointless
without the receipts in hand. Thus, the IJ did not evaluate
whether Guerra Rocha’s case should be continued during
the pendency of her U‐visa application.
In November, Guerra Rocha appealed the decision of the
IJ to the Board. Guerra Rocha asked the BIA to reverse the
IJ’s ruling on her asylum petition, and she sought a remand
to the IJ so that the judge could consider whether she was
entitled to a continuance on the ground that she was prima
facie eligible for U‐visa status. DHS opposed her motion to
remand, arguing that the U‐visa application was collateral to
the removal proceedings because (it insisted) an
immigration court cannot grant a U visa. We later made it
clear that the immigration court does have the power to
waive an alien’s inadmissibility, grant continuances, defer
removal, and take other similar steps that may be required
before a U visa is issued. We held “that 8 C.F.R. § 1003.10(a)
permits immigration judges to exercise all of the Attorney
General’s powers, except those expressly reserved by some
other regulation.” Baez‐Sanchez v. Barr, 947 F.3d 1033, 1035
No. 18‐3471 5
(7th Cir. 2020), citing Baez‐Sanchez v. Sessions, 872 F.3d 854(7th Cir. 2017) (a case also dealing with the process for
obtaining a U visa).
The Board rejected all of Guerra Rocha’s arguments. It
affirmed the denial of her applications for asylum,
withholding of removal and protection under the CAT.
Additionally, it summarily dispensed with her request for a
remand in which she could seek a continuance in order to
pursue the U visa, writing cryptically that in light of all
relevant considerations, Guerra Rocha was not entitled to a
continuance. The Board additionally observed that Guerra
Rocha could still pursue an administrative stay of removal
from DHS during the pendency of the U‐visa petition.
Guerra Rocha’s petition for review raises only the BIA’s
determination that she is not entitled to a remand for the
purpose of deciding whether her pending U‐visa application
entitles her to a continuance.
II
A
Before we turn to the merits of this petition for review,
we say a brief word about our jurisdiction. (Neither party
mentioned this point, but we are obliged to satisfy ourselves
that jurisdiction is secure.) Guerra Rocha’s immediate
argument in this case is that the IJ should have granted her a
continuance. We have recognized that although 8 U.S.C.
§ 1252(a)(2)(B)(ii) prohibits review of issues that the statute
designates as discretionary, there are other circumstances in
which the denial of a continuance is reviewable. In Calma v.
Holder, 663 F.3d 868 (7th Cir. 2011), we noted the importance
of the relation between the resolution of a procedural
6 No. 18-3471
request, such as a motion for a continuance, and the
disposition of the underlying claim. Id. at 876. Judicial
review is barred if the disposition of the procedural motion
is, de facto, a decision on the merits of an issue that is made
unreviewable by law. Id.; see 8 U.S.C. § 1252(a)(2)(B) (listing
such issues). Nonetheless, following the guidance we
received in Kucana v. Holder, 558 U.S. 233 (2010), which held
that the jurisdiction‐stripping language of section
1252(a)(2)(B)(i) does not apply to actions of the Attorney
General made discretionary by regulation, we have held that
“Kucana … requires the review of denied continuances for
abuse of discretion.” Calma, 663 F.3d at 875. The government
argued for that standard of review in its brief here; it is
consistent with our decisions; and we see no reason to shift
course now.
We hasten to add that we are aware that the Supreme
Court has under consideration several cases that might
ultimately bear on this issue. They include Nasrallah v. Barr,
No. 18‐1432 (argued March 3, 2020), which raises the
question whether, notwithstanding 8 U.S.C. § 1252(C),
factual findings underlying denials of withholding or
deferral of removal are reviewable; Ovalles v. Barr, No. 18‐
1015 (argued December 9, 2019), which asks whether the
criminal alien bar contained in 8 U.S.C. § 1252(a)(2)(C)
prohibits a court from reviewing the agency’s assessment of
diligence for purposes of equitable tolling; and Guerrero‐
Lasprilla v. Barr, No. 18‐776 (argued December 9, 2019),
which raises the question whether a request for equitable
tolling is judicially reviewable as a question of law. It is
possible that one or more of the decisions in these cases may
bear on the issue before us, but none is squarely on point.
We think that the best course is to follow our own well
No. 18‐3471 7
established rule, unless and until the Supreme Court
instructs us otherwise.
B
The central issue before us is whether the BIA adequately
considered and applied its own precedents in disposing of
Guerra Rocha’s case. Under the REAL ID Act of 2005, we
have jurisdiction to review only constitutional claims and
questions of law on a petition to review an immigration
court’s decision. 8 U.S.C. § 1252(a)(2)(D). The BIA’s failure to
address the critical elements of a legal issue qualifies as a
reviewable question of law. Jawad v. Holder, 686 F.3d 400, 404
(7th Cir. 2012).
We review the BIA’s denial of a motion to remand for a
continuance under the abuse‐of‐discretion standard. Toure v.
Barr, 926 F.3d 403, 407 (7th Cir. 2019). A misstep that serious
occurs only when the Board makes its decisions without a
rational explanation, when it inexplicably departs from
established policies or when its decision rests on an
impermissible basis. Yi Xian Chen v. Holder, 705 F.3d 624, 630
(7th Cir. 2013). This standard encompasses a claim that the
Board misread its own precedent. Cruz‐Moyaho v. Holder, 703
F.3d 991, 997 (7th Cir. 2012). BIA decisions “must be
supported by a reasoned explanation that currently reflects
the law.” Moosa v. Holder, 644 F.3d 380, 386 (7th Cir. 2011).
The “brevity of [a BIA] decision” can give rise to an
inference that “the BIA committed legal error.” Iglesias v.
Mukasey, 540 F.3d 528, 532 (7th Cir. 2008).
The BIA’s decision Matter of Sanchez Sosa, 25 I. & N. Dec.
807 (B.I.A. 2012), is its last word on how an applicant for a
U visa may obtain a continuance. It instructs that the IJ must
8 No. 18-3471
first ask whether DHS supports or opposes the applicant’s
motion for a remand. If DHS does not oppose the motion,
then “the proceedings … should be continued … in the
absence of unusual, clearly identified, and supported
reasons for not doing so.” Id. at 813. If DHS does oppose the
motion, then the IJ’s primary concern should be “the
likelihood of success” of the application. Id. This involves an
evaluation of the applicant’s prima facie eligibility for the U
visa. If the applicant has shown that she is prima facie
eligible, then there is a rebuttable presumption that the IJ
should grant the continuance. Id. Only then should the judge
consider other factors, including “the length of time the
application has been pending, the number of prior
continuances that the court has provided, and additional
relevant considerations in deciding whether a further
continuance is warranted under the circumstances.” Id. at
815; see also Matter of Rajah, 25 I. & N. Dec. 127, 130 (B.I.A.
2009) (“As a general rule, there is a rebuttable presumption
that an alien who has filed a prima facie approvable
application with the USCIS will warrant a favorable exercise
of discretion for a continuance for a reasonable period of
time.”). Notably, the Attorney General does not dispute that
Guerra Rocha is prima facie eligible for a U visa.
The BIA performed only a cursory analysis of Guerra
Rocha’s case—one that fell considerably short of Sanchez
Sosa’s requirements. It dispensed with her argument in a
single sentence: “[C]onsidering all relevant factors, including
the DHS’s opposition to the motion, the collateral nature of
the relief sought through the U‐visa petition, the timing of
the request, and the likely delay of these administrative
proceedings, the respondent has not shown that a remand is
No. 18‐3471 9
warranted.” The BIA did not even mention the likelihood
that Guerra Rocha’s application would be granted.
This analysis was not sufficient. Although we have held
that the Board is not required to “write an exegesis on every
contention” in a particular case, it must nonetheless
“consider the issues raised and announce its decision in
terms sufficient to enable a reviewing court to perceive that
it has heard and thought and not merely reacted.” Mansour
v. INS, 230 F.3d 902, 908 (7th Cir. 2000) (quoting Becerra‐
Jimenez v. INS, 829 F.2d 996, 1000 (10th Cir. 1987)). The
boilerplate paragraph we just quoted does not meet that
standard. It totally ignores the most important question
identified in Sanchez Sosa: the likelihood that the applicant’s
U‐visa petition will be granted. If the Board believed that
Guerra Rocha’s request for a continuance was not warranted
even though her application for the U visa was prima facie
valid, it had to explain why it took that position. It is not
enough merely to announce that it has taken account of all
relevant factors.
The Attorney General urges that Sanchez Sosa must be
read in light of Matter of L‐A‐B‐R‐, 27 I. & N. Dec. 405 (B.I.A.
2018). We do not disagree with him, but we do not see how
Matter of L‐A‐B‐R‐ helps. It states that, when deciding
whether to grant a continuance, an immigration judge must
consider “germane secondary factors,” such as “the
respondent’s diligence in seeking collateral relief, DHS’s
position on the motion for continuance, and concerns of
administrative efficiency.” 27 I. & N. Dec. at 415; see also id.
(“[I]t may … be appropriate to consider the length of the
continuance requested, the number of hearings held and
continuances granted previously, and the timing of the
10 No. 18-3471
continuance motion.”) But Matter of L‐A‐B‐R‐ then restates
the core holding of Sanchez Sosa, that “[t]he likelihood that
the alien will receive the pursued collateral relief and that
such relief will materially affect the outcome of the removal
proceedings is the primary consideration” in the U‐visa
context. Id. at 415 (emphasis added). Thus, Matter of L‐A‐B‐R‐
does not cure the deficiencies in this record.
We have not been asked in this case to decide whether,
when all is said and done, an IJ could find that Guerra Rocha
is or is not entitled to a continuance, or a U visa, or asylum.
Nor do we offer any gratuitous opinion on those big
questions. Our only role is to ensure that the BIA handles
Guerra Rocha’s petition in accordance with the procedures
that the Board itself has established. And we must ensure
that the Board does not ignore its own precedents in
disposing of an immigrant’s application for relief or
announce that it has considered the legally relevant criteria
when it has not done so.
We are aware that the Board has an appalling workload
and an enormous backlog of cases. See, e.g., Amid
‘nightmarish’ case backlog, experts call for independent
immigration courts, ABA Journal (Aug. 9, 2019),
https://www.americanbar.org/news/abanews/aba‐news‐
archives/2019/08/amid‐_nightmarish‐case‐backlog‐‐experts‐
call‐for‐independent‐imm/. But Guerra Rocha has no control
over the pace at which USCIS processes applications.
Moreover, the backlog and slow processing time for U visas
do not suffice, under the Board’s own rules, to justify the
denial of a continuance. Matter of Sanchez Sosa, 25 I. & N.
Dec. at 814; see also Wu v. Holder, 571 F.3d 467, 470 (5th Cir.
2009) (holding that an immigration judge abused his
No. 18‐3471 11
discretion “in relying upon [a] delay … as the sole reason for
denying [a] motion for continuance”); Malilia v. Holder, 632
F.3d 598, 606 (9th Cir. 2011). The Board cannot solve its own
problems by arbitrarily denying petitions before it.
III
The BIA abused its discretion by disregarding the criteria
it committed itself to apply in Sanchez Sosa and Matter of L‐A‐
B‐R‐, when it refused to remand Guerra Rocha’s case to the
IJ for consideration of her request for a continuance. We
therefore GRANT Guerra Rocha’s petition and REMAND for
further proceedings consistent with this opinion.