Victor Jimenez-Rodriguez v. Merrick Garland

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-2467
VICTOR ANTONIO JIMENEZ-RODRIGUEZ,
Petitioner,
v.
MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals.
Argued: January 27, 2021 Decided: April 29, 2021
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.
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.
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
2
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.
3
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
4
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
1
On appeal, Jimenez-Rodriguez also challenges the BIA’s decision to affirm the
IJ’s denial of a continuance. Though 8 U.S.C. § 1252(a)(2)(B)(ii) states that “no court shall
have jurisdiction to review . . . any other decision or action of the Attorney General . . . to
be in the discretion of the Attorney General,” this Court “agree[s] with the majority of
circuits that . . . § 1252(a)(2)(B)(ii) does not bar judicial review of an IJ’s denial of a motion
to continue removal proceedings.” Lendo, 493 F.3d at 441 n.1.
5
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.
6
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 (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 review is limited to
the scope of the agency’s reasoning, this statutory question is beyond the scope of this
appeal. 2
2
In certain instances, we have found no Chenery problem where the case presents
a purely legal question fully briefed on a complete record. See Yanez-Marquez v. Lynch,
789 F.3d 434, 461 n.14 (4th Cir. 2015). But even if we were to consider this question, it
would not provide grounds for affirming the BIA. Contrary to the Government’s
arguments, the Department’s regulations recognize that § 1182(d)(3)(A)(ii) empowers the
Attorney General (through their IJs) to issue waivers in at least some circumstances. See
8 C.F.R. § 1212.14(b). As for the limitation of these waivers to those “seeking admission,”
the INA states that “[a]n alien present in the United States who has not been admitted . . .
shall be deemed for purposes of this chapter an applicant for admission.” 8 U.S.C.
§ 1125(a)(1). Because Jimenez-Rodriguez was never lawfully admitted, he qualifies as
someone “seeking admission,” a fact that distinguishes his case from those of the
petitioners in Sunday and Man. See Sunday, 832 F.3d at 212, 217 (involving petitioner
who had been lawfully admitted but overstayed his temporary visa); Resp. Br. at 6, Man,
940 F.3d at 1354 (same).
7
B.
Assuming (as the BIA did) that § 1182(d)(3)(A)(ii) authorizes the Attorney General
to grant a waiver in this context, we consider whether IJs share that same authority. To
suggest that they do, Jimenez-Rodriguez urges this Court to join the Seventh Circuit in
reading 8 C.F.R. § 1003.10(a) to grant IJs the full powers of the Attorney General under
the INA unless otherwise limited by regulation.
8 C.F.R. § 1003.10 reads:
(a) Appointment. The immigration judges are attorneys whom the Attorney
General appoints as administrative judges . . . to conduct specified classes of
proceedings, including hearings under section 240 of the Act. Immigration
judges shall act as the Attorney General’s delegates in the cases that come
before them.
(b) Powers and duties. In conducting hearings under section 240 of the Act
and such other proceedings the Attorney General may assign to them,
immigration judges shall exercise the powers and duties delegated to them
by the Act and by the Attorney General through regulation. In deciding the
individual cases before them . . . immigration judges shall exercise their
independent judgment and discretion and may take any action consistent with
their authorities under the Act and regulations that is appropriate and
necessary for the disposition of such cases. . . .
8 C.F.R. § 1003.10.
In Baez-Sanchez, the Seventh Circuit claimed that Ҥ 1003.10(b) does not delegate
to IJs any power to waive an alien’s inadmissibility.” Baez-Sanchez v. Sessions, 872 F.3d
854, 855 (7th Cir. 2017). But the Seventh Circuit concluded that § 1003.10(a) does. “It
says that ‘[i]mmigration judges shall act as the Attorney General’s delegates in the cases
that come before them.’ This sounds like a declaration that IJs may exercise all of the
8
Attorney General’s powers ‘in the cases that come before them’, unless some other
regulation limits that general delegation.” Id.
The Seventh Circuit’s reading, however, leans too heavily on the word “delegates.”
The fact that a principal delegates power to an agent does not necessarily mean that the
agent is delegated all power held by the principal. Cf. 26 U.S.C. § 7701(a)(12)(A)(i)
(defining the term “delegate” to mean any officer, employee, or agency authorized by the
Secretary of Treasury “to perform the function mentioned or described in the context”).
Reading § 1003.10 as a whole, we cannot conclude that § 1003.10(a) alone
empowers IJs with the full scope of the Attorney General’s powers. Section 1003.10(a)
relates to the “[a]ppointment” of IJs. 8 C.F.R. § 1003.10(a). By describing them as
“attorneys whom the Attorney General appoints as administrative judges,” and as “the
Attorney General’s delegates,” the regulation makes clear that they are Executive Branch
officers, notwithstanding their title as “judges.” See 72 Fed. Reg. 53,673, 53,673 (Sep. 20,
2007) (noting “at least some instances of apparent confusion” regarding “the role and status
of immigration judges,” and discussing how IJs are “Executive Branch adjudicators and do
not serve in a purely judicial capacity”). Section 1003.10(b) then describes the “[p]owers
and duties” of IJs. It reaffirms that the IJs’ powers are limited to those specifically given
to them in the INA or “through regulation,” using language that would be unnecessary if
IJs had already been given the Attorney General’s full authority in § 1003.10(a). See Nat’l
Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 668 (2007) (rejecting reading of
regulation that would render it superfluous or redundant).
9
C.
Nevertheless, § 1003.10(b) states that IJs, “[i]n deciding the individual cases before
them, . . . may take any action consistent with their authorities under the Act and
regulations that is appropriate and necessary for the disposition of such cases.” 8 C.F.R.
§ 1003.10(b). Using similar language, 8 C.F.R. § 1240.1(a)(1)(iv) states that IJs have the
authority “[t]o take any other action consistent with applicable law and regulations as may
be appropriate.” We read the plain language in these two provisions to give IJs the
Attorney General’s power to issue § 1182(d)(3)(A)(ii) waivers. 3
In Romero v. Barr, this Court relied upon the “any action” language in § 1003.10(b)
to hold that IJs had the power to administratively close a proceeding, even though
“[g]eneral administrative closure is not specifically authorized by the INA or the
regulations governing IJs or the BIA.” 937 F.3d 282, 288, 294 (4th Cir. 2019). 4 “Read
naturally, the word ‘any’ has an expansive meaning,” giving “IJs and the BIA broad
3
If a regulation is ambiguous, we will defer, in appropriate circumstances, to the
interpretation of the agency that promulgated it. See Kisor v. Wilkie, 139 S. Ct. 2400, 2414
(2019). But because the plain text of these regulations unambiguously provides a broad
grant of authority, we need not defer to any agency interpretation here.
4
Following Romero, the Department of Justice amended § 1003.10(b) to state that
[n]othing in this paragraph (b) nor in any regulation contained in part
1240 of this chapter shall be construed as authorizing an immigration
judge to administratively close or otherwise defer adjudication of a
case unless a regulation promulgated by the Department of Justice or
a previous judicially approved settlement expressly authorizes such
an action.
85 Fed. Reg. 81,588, 81,655 (Dec. 16, 2020).
10
discretion in how to manage and resolve cases[.]” Id. at 292 (cleaned up); see also id.(collecting cases construing the term “any” to have broad meaning). While Romero dealt
with administrative closure—a procedural action—neither Romero nor the language of
§ 1003.10(b) so limit the reach of that regulation. See id. at 292 (reading the plain language
of § 1003.10(b) “most naturally to encompass actions of whatever kind appropriate for the
resolution of a case” (emphasis added)). Additionally, § 1003.10(b) states that, “[i]n
deciding the individual cases before them,” IJs may take any action “appropriate and
necessary for the disposition of such cases.” 8 C.F.R. § 1003.10(b) (emphases added). By
framing IJs’ power in terms of how cases are decided, the regulation indicates that its broad
grant of authority extends beyond just procedural devices.
In addition, § 1240.1(a)(1)(iv) offers similarly broad language when describing IJs’
substantive authority. Section 1240.1(a)(1)(i)–(iii) describes IJs’ power to adjudicate
removability; order withholding of removal under the Convention Against Torture; and
“determine applications” for cancellation of removal, adjustment of status, and various
waivers of inadmissibility. The regulation then ends this list of substantive powers with a
catchall provision, stating that IJs may “take any other action consistent with applicable
law and regulations as may be appropriate.” 8 C.F.R. § 1240.1(a)(1)(iv). Read plainly,
§ 1240.1(a)(1)(iv) gives IJs the power to take “any other action” “appropriate”—which
includes granting inadmissibility waivers where the Attorney General is so empowered by
statute. See Atunnise v. Mukasey, 523 F.3d 830, 839 (7th Cir. 2008) (citing
§ 1240.1(a)(1)(iv) as a “catchall” provision supporting an IJ’s ability to grant a
§ 1182(d)(3) waiver during removal proceedings); Matter of Castro-Tum, 27 I. & N. Dec.
11271, 285 (2018) (reading § 1240.1(a)(1)(iv) to grant IJs authority to “issue final orders in
analogous matters” to those specified in the preceding provisions of § 1240.1(a)(1)(i)–
(iii)), abrogated on other grounds by Romero, 937 F.3d at 292.
We recognize that 8 C.F.R. § 1240.1(a)(1)(ii) lists several waiver applications that
an IJ may grant under other statutory provisions (such as §§ 1182(d)(11) and (d)(12)), but
does not list waivers under § 1182(d)(3). In such scenarios, we sometimes apply the
expressio unius canon, where a statute or regulation “expressing one item of an associated
group or series” means that the law intends to “exclude[] another left unmentioned.”
N.L.R.B. v. SW Gen., Inc., 137 S. Ct. 929, 940 (2017). Such a conclusion, however,
“depends on context.” Id. The canon applies “only when circumstances support a sensible
inference that the term left out must have been meant to be excluded.” Id. (cleaned up).
Read in context, the expressio unius canon cannot apply here. Despite the omission of
§ 1182(d)(3)(A)(ii) waivers from this list, we know that IJs can grant such waivers in at
least some circumstances under 8 C.F.R. § 1212.4(b). And § 1240.1(a)(1)(iv) provides a
clear catchall provision stating that IJs may take other actions beyond those specifically
enumerated in § 1240.1(a)(1)(i)–(iii).
Our reading of the text in §§ 1003.10(b) and 1240.1(a)(1)(iv) is supported by the
historical language of these regulations. Beginning with the enactment of the INA—and
for over fifty years thereafter—the Department of Justice’s regulations expressly conferred
IJs with the Attorney General’s general statutory authority. See 8 C.F.R. § 236.1 (1952)
(“[S]pecial inquiry officers shall, in determining cases referred to them . . . exercise such
discretion and authority conferred upon the Attorney General by [the INA] as is appropriate
12
and necessary for the disposition of such cases.”); 8 C.F.R. § 240.1(a)(2) (1998) (“Subject
to any specific limitation prescribed by the Act and this chapter, immigration judges shall
also exercise the discretion and authority conferred upon the Attorney General by the Act
as is appropriate and necessary for the disposition of such cases.”); 8 C.F.R. § 1240.1(a)(2)
(2006) (same).
While the Department of Justice eventually amended these regulations in 2007, it
preserved significant portions of the original language and expressed no intent to cabin the
substantive authority of an IJ. See 72 Fed. Reg. at 53,673 (explaining the promulgation of
the final rule to outline the authorities of the EOIR Director, Chairman of BIA, and Chief
Immigration Judge; implement technical changes reflecting the enactment of the Homeland
Security Act; and add management directives to “improv[e] the workings of the
immigration hearing process”). In the amendment, the Department of Justice transferred
much of the text from § 1240.1(a)(2) to § 1003.10(b). 5 See id. at 53,677–78. Though
5
Regulation 8 C.F.R. § 1240.1(a)(2) (2006) states:
In determining cases referred for further inquiry, immigration judges
shall have the powers and authority conferred upon them by the Act and this
chapter. Subject to any specific limitation prescribed by the Act and this
chapter, immigration judges shall also exercise the discretion and authority
conferred upon the Attorney General by the Act as is appropriate and
necessary for the disposition of such cases.
Following amendment in 2007, 8 C.F.R. § 1003.10(b) states:
In conducting hearings under section 240 of the Act and such other
proceedings the Attorney General may assign to them, immigration judges
shall exercise the powers and duties delegated to them by the Act and by the
Attorney General through regulation. In deciding the individual cases before
(Continued)
13
§ 1003.10(b) no longer stated that IJs shall “exercise the discretion and authority conferred
upon the Attorney General,” it replaced that phrase with similarly broad language stating
that IJs “shall exercise their independent judgment and discretion and may take any action
consistent with their authorities under the Act and regulations.” Id. Thus, the history of
the regulations informs the scope of “any action” authorized under §§ 1003.10(b) and
1240.1(a)(1)(iv): they authorize an IJ to take any action within the bounds of the Attorney
General’s statutory authority.
Of course, the plain text of §§ 1003.10(b) and 1240.1(a)(1)(iv) imposes other limits.
These regulations only authorize IJs to take actions within the cases before them that are
(1) “appropriate and necessary” for resolving the case; and (2) “consistent with” statute
and regulation. See 8 C.F.R. §§ 1003.10(b), 1240.1(a)(1)(iv). But waivers under
§ 1182(d)(3)(A)(ii) satisfy both limitations. First, these waivers are appropriate and
necessary for resolving a case because they eliminate a bar to relief. In this case, for
instance, Jimenez-Rodriguez had already received prima facie approval of his visa petition,
indicating that all that he needed was the waiver of inadmissibility to avoid removal. 6 See
A.R. 71–74.
them . . . immigration judges shall exercise their independent judgment and
discretion and may take any action consistent with their authorities under the
Act and regulations that is appropriate and necessary for the disposition of
such cases. . . .
6
While Congress has imposed a numerical cap on the number of U visas that may
be issued each year, 8 U.S.C. § 1184(p), DHS has created a “waiting list” for applicants
whose applications have been approved and who would have been granted a U visa but for
the statutory cap. See 8 C.F.R. § 214.14(d)(2). Individuals on the waiting list are given
deferred action, protecting them from removal. Id.14
Second, the IJ’s power to issue a § 1182(d)(3)(A)(ii) waiver to Jimenez-Rodriguez
is consistent with statute and regulation. 7 See 8 C.F.R. §§ 1003.10(b), 1240.1(a)(1)(iv).
The phrase “consistent with” does not require “exact correspondence . . . but only congruity
or compatibility.” Nuclear Energy Inst., Inc. v. EPA, 373 F.3d 1251, 1269 (D.C. Cir. 2004)
(quoting Env’t Def. Fund, Inc. v. EPA, 82 F.3d 451, 457 (D.C. Cir. 1996) (per curiam)); cf.
also Goldfarb v. Mayor & City Council of Baltimore, 791 F.3d 500, 507 (4th Cir. 2015)
(holding that because the Resource Conservation Recovery Act’s saving clause only bars
actions “inconsistent with” the Clean Water Act, “RCRA mandates that are just different,
or even greater, than what the CWA requires are not necessarily . . . ‘inconsistent’ with the
CWA”).
Here, an IJ’s ability to grant a § 1182(d)(3)(A)(ii) waiver is consistent with the
statutory and regulatory scheme, which entrusts IJs with the responsibility to determine a
petitioner’s admissibility in removal proceedings, as well as the forms of relief available.
See 8 U.S.C. § 1229a; 8 C.F.R. § 1240.1(A)(1)(ii) (describing IJs’ authority to grant
various forms of relief, including waivers of inadmissibility under several statutory
provisions). Indeed, the BIA has invoked this reasoning to assert that IJs could exercise
the Attorney General’s power to issue § 209(c) waivers, even assuming that the relevant
regulation did not expressly delegate to IJs that authority. See In Re H-N, 22 I. & N. Dec.
1039, 1043 (BIA 1999). “The fact that Immigration Judges have jurisdiction to determine
7
Romero “reserve[d] the question of whether the language ‘consistent with their
authorities under the Act and regulations’ . . . constitutes a limitation,” declining to decide
the issue because “it [did] not affect our analysis.” 37 F.3d at 294 n.11.
15
the admissibility of aliens in exclusion, deportation, and now removal proceedings
necessarily implies that they also have authority to determine if any relief is available to
those aliens determined to be inadmissible.” Id.
In response, the Government cites Matter of Khan, 26 I. & N. at 801–02, to argue
that §§ 1212.4(b) and 1235.2(d)’s authorization of the waiver after denial by a district
director at a port of entry reflects the Department of Justice’s intent to limit these waivers
solely to those applications. Regulation 8 C.F.R. § 1212.4(b) states that a petitioner’s
§ 1182(d)(3) waiver application “shall be submitted . . . to the district director in charge of
the applicant’s intended port of entry prior to the applicant’s arrival in the United States.”
8 C.F.R. § 1212.4(b); see also 8 C.F.R. §§ 212.4(b), 235.2(d), 1235.2(d). 8 “If denied, the
denial shall be without prejudice to renewal of the application in the course of proceedings
before [an immigration judge.]” 9 8 C.F.R. § 1212.4(b).
But §§ 1212.4(b) and 1235.2(d) do not describe this as the only circumstance where
IJs may consider the waiver. They state that a district director’s power to deny the waiver
application is “without prejudice” to a renewed application before the IJ. By declaring the
decision to be “without prejudice,” the regulations presume that a petitioner retains an
independently existing right to present that application before the IJ. See Without
8
Though §§ 212.4(b) and 1212.4(b) refer to the waiver in “§ 1182(d)(3)(B),” the
Government admits that this is outdated language, since the regulations intend to discuss
the waiver that has since been relocated to § 1182(d)(3)(A)(ii). See Resp. Br. at 15 n.4, 17
n.6, 50.
9
The text of the regulation refers to the “special inquiry officer,” which was the
previous name given to IJs. See 42 Fed. Reg. 46,045 (Sep. 14, 1977).
16
Prejudice, Black’s Law Dictionary (11th ed. 2019) (“Without loss of any rights; in a way
that does not harm or cancel the legal rights or privileges of a party.”). As described above,
this preexisting right to request a § 1182(d)(3)(A)(ii) waiver stems from the Attorney
General’s delegation of that authority to IJs under the broad language of §§ 1003.10(b) and
1240.1(a)(1)(iv).
The Government also cites several BIA decisions to assert that the waiver is limited
to applications renewed after denial at ports of entry. But the decisions cited simply
considered the waiver in that context—none said that the waiver could only occur in that
circumstance. See Matter of Kazemi, 19 I. & N. Dec. 49, 52 (BIA 1984); Matter of Hranka,
16 I. & N. Dec. 491, 492 (BIA 1978); Matter of Le Floch, 13 I. & N. Dec. 251, 255 (BIA
1969). The case that comes closest to supporting the BIA’s argument is Matter of Fueyo,
where the BIA concluded that a petitioner in deportation proceedings did not qualify for
the waiver because she had already entered the country. 20 I. & N. Dec. 84, 87 (BIA 1989).
But Matter of Fueyo concluded that the waiver did not apply in that case because the
petitioner was not someone “seeking admission,” id. at 87 & n.3, a limitation that does not
apply here. See 8 U.S.C. § 1125(a). And even Matter of Fueyo recognized that there have
historically been cases where § 1182(d)(3) waivers were given outside the context of
applications made at ports of entry. 20 I. & N. Dec. at 87 n.3 (noting two cases granting
the waiver in conjunction with applications for adjustment of status).
Finally, the Government claims that allowing IJs to issue § 1182(d)(3)(A)(ii)
waivers to U visa applicants would undermine the “harmonious statutory scheme” by
making U visa adjudications inefficient. See Matter of Khan, 26 I. & N. Dec. at 804. True,
17
if an IJ grants the waiver, the case will continue and additional inter-agency communication
may be required. But our immigration system commonly presents cases involving input
from both the IJ and USCIS. Cf. Perez-Vargas, 478 F.3d at 192 (describing removal
proceedings where a petitioner seeking adjustment of status through a labor visa must be
admissible, apply for and receive a visa from USCIS, and receive adjustment of status from
the IJ); Gutierrez-Castillo v. Holder, 568 F.3d 256, 259 (1st Cir. 2009) (addressing case
where IJ issued a continuance to permit the filing of an immediate relative visa petition to
USCIS, after which the petitioner “could apply for adjustment of status and a section 212(h)
waiver of inadmissibility” from the IJ).
Moreover, our decision here does not require IJs to grant such waivers in all cases,
in most cases, or even in this case. That decision is left to the IJs, who must “exercise their
independent judgment and discretion” in the cases before them. 8 C.F.R. § 1003.10(b); see
8 U.S.C. § 1182(d)(3)(A)(ii). Though we acknowledge the Government’s pragmatic
concerns, the question of whether a waiver is appropriate in a given case is distinct from
the question of whether an IJ has the power to give it. Reading the broad language of
§§ 1003.10(b) and 1240.1(a)(1)(iv), we conclude that these regulations give the IJ the
Attorney General’s discretionary authority to grant a § 1182(d)(3)(A)(ii) waiver.
III.
Jimenez-Rodriguez also argues that the BIA erred by affirming the IJ’s denial of a
continuance. The decision to grant a continuance depends in part upon the likelihood that
a petitioner will receive collateral relief. Matter of L-A-B-R-, 27 I. & N. Dec. at 413–15.
18
When the IJ evaluated the likelihood that Jimenez-Rodriguez would receive relief, he did
so without considering his authority to grant Jimenez-Rodriguez an inadmissibility waiver.
Because we hold that the IJ has such authority, we remand for the IJ to determine what
relief, if any, to which Jimenez-Rodriguez is entitled, including whether an inadmissibility
waiver is appropriate. 10
IV.
For the foregoing reasons, we grant the petition, vacate the BIA’s final removal
order, and remand for further proceedings consistent with this opinion.
PETITION GRANTED;
VACATED AND REMANDED
10
The Government also suggests that this Court should deny remand because
Jimenez-Rodriguez did not comply with certain procedural requirements for filing a
request to reopen. But because the BIA did not apply such reasoning, we cannot consider
this a basis for affirming the BIA’s decision. See Chenery Corp., 318 U.S. at 87–88.
19