CA7 denies withholding to Mexican national as “particular social group” must be linked by something more than persecution

The BIA did not err by finding that an alien failed to identify a valid particular social group within the meaning of the statutes authorizing asylum and withholding of removal; The IJ and the BIA did not err by rejecting the alien’s proposed group of people who feared harm from politically connected spouses; The alien ailed to identify any other shared characteristic; Substantial evidence supported the IJ’s and the BIA’s conclusion that his wife tried to hurt him out of personal animosity; The IJ reasonably found that the alien failed to substantiate his claim that any political opinion would be imputed to him based on his wife’s politics; Substantial evidence supported the conclusion that he did not show that he would likely suffer harm so barbaric that it met the definition of torture.

  • 8 U.S.C.S. § 1101(a)(42)(A) defines refugee, 8 U.S.C.S. § 1158(b)(1)(A) authorizes asylum, and 8 U.S.C.S. § 1231(b)(3)(A) requires withholding of removal if an alien’s life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.
  • Where the Board of Immigration Appeals has adopted the decision of the immigration judge and added its own reasoning, an appellate court reviews both decisions.
  • In a removal proceeding, an appellate court must affirm a decision if it is supported by reasonable, substantial, and probative evidence on the record considered as a whole, and an appellate court may overturn it only if the record compels a contrary result or there has been a legal error. 8 U.S.C.S. § 1252(b)(4)(B) and (a)(2)(D), respectively.
  • The meaning of the flexible statutory term particular social group in 8 U.S.C.S. § 1101(a)(42)(A) is not self-evident from the statutory text. The Board of Immigration Appeals (BIA) has limited the concept to groups whose membership is defined by a characteristic that is either immutable or is so fundamental to individual identity or conscience that a person ought not be required to change. Under the principles of the Chevron decision, an appellate court defers to the BIA’s interpretation of the statute.
  • A personal dispute, no matter how nasty, cannot support an alien’s claim of asylum.
  • To be eligible for withholding of removal, it is not enough to show that a family member holds a political opinion, an alien also must show that an alleged persecutor would impute that opinion to him.

Cabrera entered the U.S. without inspection in 2001. After a 2009 arrest, he applied for withholding of removal under 8 U.S.C. 1231 saying that he feared return to Mexico because of threats and mistreatment by his wife, who holds local office. Cabrera stated that he feared his wife would use political influence to have people cause him harm, including torture at the hands of Mexican law enforcement. He asserted membership in a particular social group: “individuals who face persecution by corrupt governmental and law enforcement authorities instigated by a politically connected spouse” and applied for protection under the Convention Against Torture. The immigration judge found his testimony credible but denied his applications, finding that Cabrera had not proposed a valid social group because he did not identify a shared characteristic aside from persecution and had not shown that he would be harmed based on his membership in that group. The judge concluded that his wife had “a personal vendetta” and that Cabrera could not show a likelihood of torture because he had not been injured and had not shown that his wife ever followed through on her threats. The BIA affirmed. The Seventh Circuit denied review. A “particular social group” must be linked by something more than persecution. Substantial evidence supports a conclusion that his wife tried to hurt Cabrera out of personal animosity.

_______________________________________________________________

BENJAMIN CARLOS RUIZ-CABRERA, Petitioner, v. ERIC H. HOLDER, JR., Attorney General of the United States, Respondent. No. 13-2939.

United States Court of Appeals, Seventh Circuit. Argued March 5, 2014. Decided April 8, 2014.

Before EASTERBROOK, MANION, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge.

Petitioner Benjamin Ruiz-Cabrera is a Mexican citizen who fears harm from his physically abusive and politically active wife back in Mexico. He challenges the denial of his applications for withholding of removal and protection under the Convention Against Torture. He maintains that his wife and her political allies will target him for persecution based on his proposed particular social group: “persons who face persecution by corrupt governmental and law enforcement authorities instigated by a politically connected spouse.” He also asserts he will be persecuted for imputed political opinions in opposition to or in support of his wife’s political party.

We deny Ruiz-Cabrera’s petition. The Board of Immigration Appeals did not err by finding that he failed to identify a valid “particular social group” within the meaning of the statutes authorizing asylum and withholding of removal. See 8 U.S.C. § 1101(a)(42)(A) (defining “refugee”), § 1158(b)(1)(A) (authorizing asylum); § 1231(b)(3)(A) (requiring withholding of removal if alien’s “life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion”). In addition, substantial evidence supports the Board’s determinations that Ruiz-Cabrera did not show imputed political opinion or a likelihood of torture.

I. Factual and Procedural Background

Ruiz-Cabrera entered the United States without inspection (i.e., unlawfully) in 2001. He came to the attention of immigration authorities in 2009 after an arrest. He conceded removability, but he applied for withholding of removal under 8 U.S.C. § 1231 saying that he feared returning to Mexico because of threats and mistreatment by his wife, who holds a local office as a member of Party of the Democratic Revolution (PRD). Ruiz-Cabrera stated in his application that he feared his wife would “use her political influence to have people close to her cause me harm, including torture at the hands of Mexican law enforcement.” He sought relief based on imputed political opinion (opposition to the PRD) and membership in a particular social group, which he defined as “individuals who face persecution by corrupt governmental and law enforcement authorities instigated by a politically connected spouse.” He also applied for protection under the Convention Against Torture. See 8 C.F.R. § 1208.16(c).

At his hearing before an immigration judge, Ruiz-Cabrera recounted experiences that led him to fear his wife. The two had begun dating in 1989, had three sons over the next seven years, and married in 2000. Ruiz-Cabrera testified that throughout the 1990s, his wife would often become violent (throwing stones and other objects at him) and twice urged men to fight him, publicly asserting that he had abused her. Though he was able to defuse those confrontations, Ruiz-Cabrera singled out a particularly frightening incident in 1996 or 1997 when someone fired two shots at him. He believes the shots were fired by the brother of a neighbor with whom his wife accused him of having an affair. Ruiz-Cabrera said that he agreed to marry his wife in 2000 “to keep [his] children secure.” He entered the United States illegally a year later, though, leaving behind his sons—then ages 10, 9, and 5. He had not told his wife or children of his plans. When he called her from the United States, she threatened to have him extradited back to Mexico.

To substantiate his fears that his wife would use her political connections to harm him, Ruiz-Cabrera testified about two encounters in 2002 with Mexican police. First, during an eight-month return to Mexico, police detained him based on his wife’s false accusation that he had groped her. The police had him stand naked for five minutes while they visually examined him. He was released later that day only after his wife dropped the charges. A few weeks later, his car was pulled over by a police officer who he believed was trailing him at his wife’s behest. The officer attempted to plant cocaine in his pocket but let him go only after he paid a small bribe.

The immigration judge found Ruiz-Cabrera’s testimony (and corroborating telephonic testimony from his mother and brother in Mexico City) to be credible but still denied his applications for relief. The judge concluded first that Ruiz-Cabrera had not proposed a valid social group because he did not identify a shared characteristic aside from persecution. The judge also found that Ruiz-Cabrera had not shown that he would be harmed based on his membership in that group. Rather, said the judge, his wife targeted him in “a personal vendetta.”

The judge then explained that Ruiz-Cabrera had not offered any evidence to show that an alleged persecutor would impute any political opinion to him. Finally the judge concluded that Ruiz-Cabrera could not show a likelihood of torture because he had not been injured and he had failed to show that his wife had ever followed through on her threats. The Board of Immigration Appeals adopted and affirmed the immigration judge’s order with its own written opinion. We have jurisdiction under 8 U.S.C. § 1252 to review the decision.

II. Analysis

A. “Particular Social Group”

Where the Board has adopted the decision of the immigration judge and added its own reasoning, we review both decisions. Pouhova v. Holder, 726 F.3d 1007, 1011 (7th Cir. 2013); Mema v. Gonzales, 474 F.3d 412, 416 (7th Cir. 2007). We must affirm the decision if it is supported by reasonable, substantial, and probative evidence on the record considered as a whole, and we may overturn it only if the record compels a contrary result, 8 U.S.C. § 1252(b)(4)(B); INS v. Elias-Zacarias, 502 U.S. 478, 481 & n.1 (1992); Abraham v. Holder, 647 F.3d 626, 632 (7th Cir. 2011), or there has been a legal error, 8 U.S.C. § 1252(a)(2)(D); Sirbu v. Holder, 718 F.3d 655, 658-60 (7th Cir. 2013); Asani v. INS, 154 F.3d 719, 722-23 (7th Cir. 1998).

The meaning of the flexible statutory term “particular social group” is not self-evident from the statutory text. The Board of Immigration Appeals has limited the concept to groups whose membership is defined by a characteristic that is either immutable or is so fundamental to individual identity or conscience that a person ought not be required to change. Matter of Acosta, 19 I. & N. Dec. 211, 233-34 (1985), overruled in part on other grounds, Matter of Mogharrabi, 19 I. & N. Dec. 439, 441 (BIA 1987). Under the principles of Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984), we defer to the Board’s interpretation of the statute. See Escobar v. Holder, 657 F.3d 537, 542 (7th Cir. 2011); Lwin v. INS, 144 F.3d 505, 511-12 (7th Cir. 1998).

Ruiz-Cabrera contends that his proposed group is cognizable because its members—people who fear harm from politically connected spouses—share the characteristic of being married. He asserts that the identity of one’s spouse (or in the case of divorce one’s former spouse) is an immutable characteristic.

The immigration judge and Board did not err by rejecting this proposed group. The common characteristic shared by its members is that they face persecution. Though a social group does not “require[] complete independence of any relationship to the persecutor,” Cece v. Holder, 733 F.3d 662, 671 (7th Cir. 2013) (en banc); see also Escobar, 657 F.3d at 545-46, the group must be linked by something more than persecution. See Jonaitiene v. Holder, 660 F.3d 267, 271-72 (7th Cir. 2011). As Ruiz-Cabrera has framed the question, marriage is his relationship to his alleged persecutor, not a characteristic shared by all members of the proposed group. Ruiz-Cabrera failed to identify any other shared characteristic. Moreover, substantial evidence supports the immigration judge’s and Board’s conclusion that his wife tried to hurt him out of personal animosity. “A personal dispute, no matter how nasty, cannot support an alien’s claim of asylum.” Marquez v. INS, 105 F.3d 374, 380 (7th Cir. 1997); see Wang v. Gonzales, 445 F.3d 993, 998 (7th Cir. 2006). Ruiz-Cabrera is not entitled to withholding of removal based on persecution of a particular social group.

B. Imputed Political Opinion

Ruiz-Cabrera next asserts that the Board and immigration judge misinterpreted his claim that he would face persecution on the basis of imputed political opinion. He seems to suggest that two different and opposing types of political opinion will be imputed to him: first, PRD politicians see him as anti-PRD because of his bad relationship with his wife, but second, drug traffickers will “mistake his wife’s involvement in politics for his own support for the government” and will target him on that basis.

The immigration judge reasonably found that Ruiz-Cabrera failed to substantiate his claim that any political opinion would be imputed to him based on his wife’s politics. It is not enough to show that a family member holds a political opinion. Ruiz-Cabrera also must show that an alleged persecutor would impute that opinion to him. See N.L.A. v. Holder, No. 11-2706, ___ F.3d ___, ___, 2014 WL 806954, at *6 (7th Cir. March 3, 2014); Hassan v. Holder, 571 F.3d 631, 641-42 (7th Cir. 2009); Sankoh v. Mukasey, 539 F.3d 456, 471-72 (7th Cir. 2008). The only evidence Ruiz-Cabrera supplied on this theory was general background evidence of drug violence and political corruption in Mexico. Nothing in the record indicates that traffickers or politicians are likely to connect him to his wife’s politics or to target him for those reasons.

Accordingly, the Board and immigration judge did not err by denying Ruiz-Cabrera’s application for withholding of removal under 8 U.S.C. § 1231(b)(3).

C. Convention Against Torture

With respect to his claim for protection under the Convention Against Torture, Ruiz-Cabrera contends that the Board erroneously limited its review to factual error when it upheld the immigration judge’s conclusion that he had not shown a likelihood that he would suffer harm constituting torture. Nothing in the decision suggests that the Board so limited its review, and substantial evidence supports the immigration judge’s conclusion that Ruiz-Cabrera did not show that he would likely suffer harm so barbaric that it met the definition of torture. See 8 C.F.R. § 1208.18(a)(2) (defining torture as “an extreme form of cruel and inhuman treatment”); Bathula v. Holder, 723 F.3d 889, 903-05 (7th Cir. 2013); Margos v. Gonzales, 443 F.3d 593, 600 (7th Cir. 2006).

Posted in 7th Circuit, 7th Circuit Cases- Aliens, Asylum, particular social group, withholding of removal | Leave a comment

CA7 denies motion to reopen filed almost nine years from the final administrative removal order

Patel v Holder, Case No. 13-2442 (C.A. 7. Apr. 1, 2014)
Jyotsnaben and Pravin Patel petition for review of a denial by the Board of Immigration Appeals of their motion to reopen their removal proceedings. The Patels moved to reopen more than nine years after the Board had dismissed their earlier appeal of an immigration judge’s denial of their applications for asylum and other relief from removal. Because their motion to reopen was untimely, we deny the petition.

Jyotsnaben Patel was admitted to the United States in December 1992 as a nonimmigrant visitor; her husband, Pravin Patel, entered nearly six months later but was neither admitted nor paroled. They applied for asylum and both were charged with removability: Mrs. Patel because she had overstayed her visa, see 8 U.S.C. § 1227(a)(1)(B), and Mr. Patel because he had entered the country illegally, see 8 U.S.C. § 1182(a)(6)(A)(I). Their cases were consolidated, and the Patels testified before an immigration judge in support of their applications for asylum, but the judge found their allegations not credible, denied their applications, and granted them voluntary departure by the end of September 2002. The Patels failed to comply with the order for voluntary departure; their failure rendered them inadmissible for ten years. See 8 U.S.C. § 1182(a)(9)(A)(ii); Dada v. Mukasey, 554 U.S. 1, 12 (2008); Hadayat v. Gonzales, 458 F.3d 659, 664 (7th Cir. 2006). The Patels appealed to the Board of Immigration Appeals, but they filed no brief. With no brief on file, the Board summarily dismissed their appeal in March 2004 and ordered the Patels to leave the United States within thirty days.

The Patels did not comply with the Board’s order to leave the country. Still in the United States seven years later, in July 2011 they filed an I-246 application to stay their removal. That application sought from the government a discretionary stay of removal for humanitarian reasons. See 8 C.F.R. §§ 241.6 and 212.5. Immigration and Customs Enforcement granted their application in August 2012, permitting the Patels to remain in the country for one more year so that they could apply for adjustment of status or prepare to leave the United States.

An alien seeking the relief of reopening generally must move to reopen within ninety days of the final administrative decision of removal, 8 U.S.C.S. § 1229a(c)(7)(C)(i), 8 C.F.R. § 1003.2(c)(2), and petitioners did not dispute that their motion was filed almost nine years too late. Regulatory or administrative changes like those on which petitioners relied were not included among the exceptions to the 90-day deadline, and the BIA thus acted properly in denying their motion as untimely; Even if the recent administrative changes were exceptions to the 90-day deadline, the BIA’s refusal to reopen based on them would not have been an abuse of discretion. Far from being required, reopening petitioners’ cases would have been pointless.

A court of appeals reviews the Board of Immigration Appeals’ denial of a motion to reopen for abuse of discretion, and will uphold its decision unless it was made without a rational explanation or rested on an impermissible basis.

An alien seeking the relief of reopening generally must move to reopen within ninety days of the final administrative decision of removal. 8 U.S.C.S. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). The statute provides exceptions to the ninety-day limit, such as a change in country conditions, 8 U.S.C.S. § 1229a(c)(7)(C)(ii).

An appellate court does not review Board of Immigration Appeals’ decisions not to reopen sua sponte.

The Board of Immigration Appeals is not empowered to exercise prosecutorial discretion in agency enforcement of immigration laws. Also, government decisions about prosecutorial discretion in immigration enforcement are not subject to judicial review.

The purpose of a grant of voluntary departure is to facilitate removal without requiring the agency and courts to devote resources to the matter.

___________________________

PRAVIN BALDEVBHAI PATEL and JYOTSNABEN PATEL, Petitioners,
v.
ERIC H. HOLDER, JR., Attorney General of the United States, Respondent.

No. 13-2442.
United States Court of Appeals, Seventh Circuit.

Argued December 6, 2013.
Decided April 1, 2014.
Before KANNE and ROVNER, Circuit Judges, and DURKIN, District Judge.[*]

ROVNER, Circuit Judge.

Jyotsnaben and Pravin Patel petition for review of a denial by the Board of Immigration Appeals of their motion to reopen their removal proceedings. The Patels moved to reopen more than nine years after the Board had dismissed their earlier appeal of an immigration judge’s denial of their applications for asylum and other relief from removal. Because their motion to reopen was untimely, we deny the petition.

Jyotsnaben Patel was admitted to the United States in December 1992 as a nonimmigrant visitor; her husband, Pravin Patel, entered nearly six months later but was neither admitted nor paroled. They applied for asylum and both were charged with removability: Mrs. Patel because she had overstayed her visa, see 8 U.S.C. § 1227(a)(1)(B), and Mr. Patel because he had entered the country illegally, see 8 U.S.C. § 1182(a)(6)(A)(I). Their cases were consolidated, and the Patels testified before an immigration judge in support of their applications for asylum, but the judge found their allegations not credible, denied their applications, and granted them voluntary departure by the end of September 2002. The Patels failed to comply with the order for voluntary departure; their failure rendered them inadmissible for ten years. See 8 U.S.C. § 1182(a)(9)(A)(ii); Dada v. Mukasey, 554 U.S. 1, 12 (2008); Hadayat v. Gonzales, 458 F.3d 659, 664 (7th Cir. 2006). The Patels appealed to the Board of Immigration Appeals, but they filed no brief. With no brief on file, the Board summarily dismissed their appeal in March 2004 and ordered the Patels to leave the United States within thirty days.

The Patels did not comply with the Board’s order to leave the country. Still in the United States seven years later, in July 2011 they filed an I-246 application to stay their removal. That application sought from the government a discretionary stay of removal for humanitarian reasons. See 8 C.F.R. §§ 241.6 and 212.5. Immigration and Customs Enforcement granted their application in August 2012, permitting the Patels to remain in the country for one more year so that they could apply for adjustment of status or prepare to leave the United States.

Instead of seeking to adjust status (no application is in the record), the Patels moved the Board to reopen their removal proceedings in May 2013. Their request came more than nine years after the Board had ordered their removal but within a year of the stay order. The request also reflected a complicated strategy. The Patels sought to reopen the removal proceedings so that they could ask the government to consent to have those proceedings cly closed. Once closed, the Patels believed, they could seek a provisional waiver of their inadmissibility on the basis of their U.S.-citizen daughter. See 8 C.F.R. § 212.7(e). With the waiver in hand, the Patels could then travel abroad to apply for an immigrant visa to return legally to the United States. See id. § 212.7(e)(3)(vi). The Department of Homeland Security opposed their motion to reopen, asserting that it was filed too late and no exception to the filing deadline applied. Moreover, the Department said, even if the Board reopened the proceedings, the government would not consent to close the proceedings administratively, thus eliminating the Patels’ eligibility for a provisional waiver and quest for lawful status.

In its order the next month, the Board denied the Patels’ motion to reopen. It explained that the motion was filed after the 90-day period for motions to reopen, see 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2), the Patels did not assert that they fell within any exception to the 90-day deadline, and they did not establish an extraordinary situation that would warrant reopening sua sponte.

In their petition in this court for review of that order, the Patels argue that the Board abused its discretion in denying their motion to reopen. They contend that the Board ignored two administrative changes to immigration enforcement in the last two years that, they believe, justify reopening their case. First, the Patels repeat that if their cases are reopened, they can seek provisional waivers of inadmissibility. They cite to regulatory changes last year under which aliens granted waivers may lawfully return to the United States after traveling abroad to obtain immigrant visas. See 8 C.F.R. § 212.7(e)(4)(v) (effective March 2013). Second, the Patels insist that the Board should have considered a recent internal memorandum from Immigration and Customs Enforcement that describes its updated prosecutorial priorities. Under the terms of that memo, they believe that they are now eligible for an exercise of prosecutorial discretion that favors reopening their case. See http://www.ice.gov/doclib/secure-communities/pdf/prosecutorial-discretion-memo.pdf (last visited March 21, 2014). Since the government in 2012 exercised its discretion to grant the Patels an administrative stay from removal, the Patels conclude that, for the sake of consistency, the Board should have extended favorable prosecutorial discretion to permit them to reopen their proceedings.

We review the Board’s denial of a motion to reopen for abuse of discretion, and we will uphold its decision unless it was made without a rational explanation or rested on an impermissible basis. Reyes-Cornejo v. Holder, 734 F.3d 636, 647 (7th Cir. 2013); Marino v. Holder, 687 F.3d 365, 368 (7th Cir. 2012). Here, the Board did not abuse its discretion.

First, an alien seeking the relief of reopening generally must move to reopen within ninety days of the final administrative decision of removal. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). The Patels do not dispute that their motion was filed almost nine years too late. The statute provides exceptions to the ninety-day limit, such as a change in country conditions, see 8 U.S.C. § 1229a(c)(7)(C)(ii), but the Patels do not argue to us (nor did they argue to the Board) that any of these exceptions apply. Instead, they cite to the recent administrative changes. But regulatory or administrative changes like those on which the Patels rely are not included among the exceptions to the 90-day deadline. The Board thus acted properly in denying the motion as untimely. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(3).

Even if the recent administrative changes were exceptions to the 90-day deadline, the Board’s refusal to reopen based on them would not be an abuse of discretion. The Patels seek to reopen so they can ask the government to consent to administrative closure, which would allow the Patels to pursue a waiver of inadmissibility and immigrant visas through consular processing overseas. See 8 C.F.R. § 212.7(e)(3). But in opposing the motion to reopen, the government emphasized that it would not consent to close the proceedings administratively. Without administrative closure, the Patels would remain ineligible for provisional waivers of inadmissibility, the professed purpose of their motion to reopen. Therefore, far from being required, reopening the Patels’ cases would have been pointless.

The Patels offer two replies, but both are unavailing. First, they argue that, even if the Board properly denied their motion, the Board should have reopened the proceedings sua sponte. But we do not review the Board’s decisions not to reopen sua sponte. See Shah v. Holder, 736 F.3d 1125, 1126 (7th Cir. 2013); Anaya-Aguilar v. Holder, 683 F.3d 369, 372-73 (7th Cir. 2012). Second, they insist that, despite the untimeliness of their motion, the Board should have reopened their case as a favorable exercise of prosecutorial discretion, following the advice in the memorandum from Immigration and Customs Enforcement. This contention is flawed on several levels. The Board is not empowered to exercise prosecutorial discretion in agency enforcement of immigration laws. See Kim v. Holder, 737 F.3d 1181, 1185 (7th Cir. 2013). Also, government decisions about prosecutorial discretion in immigration enforcement are not subject to judicial review. Id. Moreover, the memorandum explicitly states that it does not create any rights or benefits enforceable at law. Finally, the Patels have never explained how a favorable exercise of discretion is the proper reward for their decision to flout the grant of voluntary departure in 2002, the purpose of which was to facilitate removal “without requiring the agency and courts to devote resources to the matter.” Alimi v. Ashcroft, 391 F.3d 888, 892 (7th Cir. 2004).

So we must deny the petition for review, but two developments after oral arguments require brief comment. First, after argument, the Patels again sought from Immigration and Customs Enforcement a favorable exercise of prosecutorial discretion to consent to reopening their proceedings, and the agency again refused. Second, after the agency refused the Patels’ request, they responded in our court with a “stipulation” asking that we adopt certain “procedures and standards set forth by the Second Circuit.” These procedures would require that we dismiss this appeal so that the Justice Department could seek administrative closure. This is not the case to consider adopting the Second Circuit’s procedures because those procedures would not help the Patels. Even under the Second Circuit’s procedures, the government must consent to administrative closure, see In re Immigration Petitions for Review Pending in U.S. Court of Appeals for Second Circuit, 702 F.3d 160, 161 (2d Cir. 2012), and the government has repeatedly refused to do so.

Accordingly, the Board did not abuse its discretion in declining to reopen the Patels’ proceedings, and their petition for review is DENIED.

[*] The Honorable Thomas M. Durkin, of the United States District Court for the Northern District of Illinois, sitting by designation.

Patel v Holder Case No. 13-2442 (C.A. 7. Apr. 1, 2014)

Posted in 7th Circuit, 7th Circuit Cases- Aliens, Administrative closure, Motion to Reopen | Tagged | Leave a comment

BIA Precedent Decisions Volume 26 (2012-2014) Executive Office for Immigration Review

SIERRA, 26 I&N Dec. 288 (BIA 2014)

ID 3799 (PDF)

Under the law of the United States Court of Appeals for the Ninth Circuit, the offense of attempted possession of a stolen vehicle in violation of sections 193.330 and 205.273 of the Nevada Revised Statutes, which requires only a mental state of “reason to believe,” is not categorically an aggravated felony “theft offense (including receipt of stolen property)” under sections 101(a)(43)(G) and (U) of the Immigration and Nationality Act, 8 U.S.C. §§ 1101(a)(43)(G) and (U) (2012).


C-J-H-, 26 I&N Dec. 284 (BIA 2014)

ID 3798 (PDF)

An alien whose status has been adjusted from asylee to lawful permanent resident cannot subsequently readjust status under section 209(b) of the Immigration and Nationality Act, 8 U.S.C. § 1159(b) (2012).


CHAVEZ-ALVAREZ, 26 I&N Dec. 274 (BIA 2014)

ID 3797 (PDF)

(1) Adjustment of status constitutes an “admission” for purposes of determining an alien’s removability under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2012), as an alien convicted of an aggravated felony “at any time after admission.”

(2) An element listed in a specification in the Manual for Courts-Martial (“MCM”) must be pled and proved beyond a reasonable doubt and thus is the functional equivalent of an “element” of a criminal offense for immigration purposes.

(3) The crime of sodomy by force in violation of article 125 of the Uniform Code of Military Justice, 10 U.S.C. § 925 (2000), and the Punitive Articles of the MCM relating to sodomy, is a crime of violence under 18 U.S.C. § 16 (2012) within the definition of an aggravated felony under section 101(a)(43)(F) of the Act, 8 U.S.C. § 1101(a)(43)(F)(2012).


ABDELGHANY, 26 I&N Dec. 254 (BIA 2014)

ID 3796 (PDF)

(1) A lawful permanent resident who has accrued 7 consecutive years of lawful unrelinquished domicile in the United States and who is removable or deportable by virtue of a plea or conviction entered before April 24, 1996, is eligible to apply for discretionary relief under former section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1994), unless: (1) the applicant is subject to the grounds of inadmissibility under sections 212(a)(3)(A), (B), (C), or (E), or (10)(C) of the Act, 8 U.S.C. §§ 1182(a)(3)(A), (B), (C), or (E), or (10)(C) (2012); or (2) the applicant has served an aggregate term of imprisonment of at least 5 years as a result of one or more aggravated felony convictions entered between November 29, 1990, and April 24, 1996.

(2) A lawful permanent resident who has accrued 7 consecutive years of lawful unrelinquished domicile in the United States and who is removable or deportable by virtue of a plea or conviction entered between April 24, 1996, and April 1, 1997, is eligible to apply for discretionary relief from removal or deportation under former section 212(c) of the Act unless: (1) the applicant’s removal or deportation proceedings commenced on or after April 24, 1996, and the conviction renders the applicant removable or deportable under one or more of the deportability grounds enumerated in section 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, 1277 (as amended); or (2) the applicant is subject to the grounds of inadmissibility under sections 212(a)(3)(A), (B), (C), or (E), or (10)(C) of the Act; or (3) the applicant has served an aggregate term of imprisonment of at least 5 years as a result of one or more aggravated felony convictions entered between November 29, 1990, and April 24, 1996.

(3) A lawful permanent resident who is otherwise eligible for relief under former section 212(c) of the Act may apply for such relief in removal or deportation proceedings without regard to whether the relevant conviction resulted from a plea agreement or a trial and without regard to whether he or she was removable or deportable under the law in effect when the conviction was entered.

M-E-V-G-, 26 I&N Dec. 227 (BIA 2014)

ID 3795 (PDF)

(1) In order to clarify that the “social visibility” element required to establish a cognizable “particular social group” does not mean literal or “ocular” visibility, that element is renamed as “social distinction.” Matter of E-A-G-, 24 I&N Dec. 591 (BIA 2008); Matter of S-E-G-, 24 I&N Dec. 579 (BIA 2008); Matter of A-M-E- & J-G-U-, 24 I&N Dec. 69 (BIA 2007); and Matter of C-A-, 23 I&N Dec. 951 (BIA 2006), clarified.

(2) An applicant for asylum or withholding of removal seeking relief based on “membership in a particular social group” must establish that the group is (1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.

(3) Whether a social group is recognized for asylum purposes is determined by the perception of the society in question, rather than by the perception of the persecutor.


W-G-R-, 26 I&N Dec. 208 (BIA 2014)

ID 3794 (PDF)

(1) In order to clarify that the “social visibility” element required to establish a cognizable “particular social group” does not mean literal or “ocular” visibility, that element is renamed as “social distinction.” Matter of E-A-G-, 24 I&N Dec. 591 (BIA 2008); Matter of S-E-G-, 24 I&N Dec. 579 (BIA 2008); Matter of A-M-E- & J-G-U-, 24 I&N Dec. 69 (BIA 2007); and Matter of C-A-, 23 I&N Dec. 951 (BIA 2006), clarified.

(2) An applicant for asylum or withholding of removal seeking relief based on “membership in a particular social group” must establish that the group is (1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.

(3) An applicant has the burden of demonstrating not only the existence of a cognizable particular social group and his membership in that particular social group, but also a risk of persecution “on account of” his membership in that group.

(4) The respondent did not establish that “former members of the Mara 18 gang in El Salvador who have renounced their gang membership” constitute a “particular social group” or that there is a nexus between the harm he fears and his status as a former gang member.


OPPEDISANO, 26 I&N Dec. 202 (BIA 2013)

ID 3793 (PDF)

The offense of unlawful possession of ammunition by a convicted felon in violation of 18 U.S.C. § 922(g) (2006) is an aggravated felony under section 101(a)(43)(E)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(E)(ii) (2012).


DOUGLAS, 26 I&N Dec. 197 (BIA 2013)

ID 3792 (PDF)

A child who has satisfied the statutory conditions of former section 321(a) of the Immigration and Nationality Act, 8 U.S.C. § 1432(a) (2000), before the age of 18 years has acquired United States citizenship, regardless of whether the naturalized parent acquired legal custody of the child before or after the naturalization. Matter of Baires, 24 I&N Dec. 467 (BIA 2008), followed. Jordon v. Attorney General of U.S., 424 F.3d 320 (3d Cir. 2005), not followed.

PINZON, 26 I&N Dec. 189 (BIA 2013)

ID 3791 (PDF)

(1) An alien who enters the United States by falsely claiming United States citizenship is not deemed to have been inspected by an immigration officer, so the entry is not an “admission” under section 101(a)(13)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(13)(A) (2012).

(2) The offense of knowingly and willfully making any materially false, fictitious, or fraudulent statement to obtain a United States passport in violation of 18 U.S.C. § 1001(a)(2) (2006) is a crime involving moral turpitude.


ESTRADA, 26 I&N Dec. 180 (BIA 2013)

ID 3790 (PDF)

A spouse or child accompanying or following to join a principal grandfathered alien cannot qualify as a derivative grandfathered alien for purposes of section 245(i) of the Immigration and Nationality Act, 8 U.S.C. § 1255(i) (2006), by virtue of a spouse or child relationship that arose after April 30, 2001.


TAVAREZ PERALTA, 26 I&N Dec. 171 (BIA 2013)

ID 3789 (PDF)

(1) An alien convicted of violating 18 U.S.C. § 32(a)(5) (2006), who interfered with a police helicopter pilot by shining a laser light into the pilot’s eyes while he operated the helicopter, is removable under section 237(a)(4)(A)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(4)(A)(ii) (2006), as an alien who has engaged in criminal activity that endangers public safety.

(2) A violation of 18 U.S.C. § 32(a)(5) is not a crime of violence under 18 U.S.C. § 16 (2006).


J-G-, 26 I&N Dec. 161 (BIA 2013)

ID 3788 (PDF)

(1) An alien who is subject to an in absentia removal order need not first rescind the order before seeking reopening of the proceedings to apply for asylum and withholding of removal based on changed country conditions arising in the country of the alien’s nationality or the country to which removal has been ordered.

(2) The numerical limitations on filing a motion to reopen in 8 C.F.R. § 1003.23(b)(1)(2013) are not applicable to an alien seeking reopening to apply for asylum and withholding of removal based on changed country conditions arising in the country of the alien’s nationality or the country to which removal has been ordered.


ZELENIAK, 26 I&N Dec. 158 (BIA 2013)

ID 3787 (PDF)

Section 3 of the Defense of Marriage Act, Pub. L. No. 104 199, 110 Stat. 2419, 2419 (1996), is no longer an impediment to the recognition of lawful same-sex marriages and spouses under the Immigration and Nationality Act if the marriage is valid under the laws of the State where it was celebrated.


FLORES, 26 I&N Dec. 155 (BIA 2013)

ID 3786 (PDF)

The offense of traveling in interstate commerce with the intent to distribute the proceeds of an unlawful drug enterprise in violation of 18 U.S.C. § 1952(a)(1)(A) (2006) is not an “aggravated felony” under section 101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2006), because it is neither a “drug trafficking crime” under 18 U.S.C. § 924(c) (2006) nor “illicit trafficking in a controlled substance.” Matter of Davis, 20 I&N Dec. 536 (BIA 1992), followed.


V-X-, 26 I&N Dec. 147 (BIA 2013)

ID 3785 (PDF)

(1) A grant of asylum is not an “admission” to the United States under section 101(a)(13)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(13)(A)(2006).

(2) When termination of an alien’s asylum status occurs in conjunction with removal proceedings pursuant to 8 C.F.R. § 1208.24 (2013), the Immigration Judge should ordinarily make a threshold determination regarding the termination of asylum status before resolving issues of removability and eligibility for relief from removal.

(3) An adjudication of “youthful trainee” status pursuant to section 762.11 of the Michigan Compiled Laws is a “conviction” under section 101(a)(48)(A) of the Act because such an adjudication does not correspond to a determination of juvenile delinquency under the Federal Juvenile Delinquency Act, 18 U.S.C. §§ 5031-5042 (2006). Matter of Devison, 22 I&N Dec. 1362 (BIA 2000), followed.


E-S-I-, 26 I&N Dec. 136 (BIA 2013)

ID 3784 (PDF)

(1) Where the indicia of a respondent’s incompetency are manifest, the Department of Homeland Security (“DHS”) should serve the notice to appear on three individuals: (1) a person with whom the respondent resides, who, when the respondent is detained in a penal or mental institution, will be someone in a position of demonstrated authority in the institution or his or her delegate and, when the respondent is not detained, will be a responsible party in the household, if available; (2) whenever applicable or possible, a relative, guardian, or person similarly close to the respondent; and (3) in most cases, the respondent.

(2) If the DHS did not properly serve the respondent where indicia of incompetency were either manifest or arose at a master calendar hearing that was held shortly after service of the notice to appear, the Immigration Judge should grant a continuance to give the DHS time to effect proper service.

(3) If indicia of incompetency become manifest at a later point in the proceedings and the Immigration Judge determines that safeguards are needed, he or she should
evaluate the benefit of re-serving the notice to appear in accordance with 8 C.F.R. §§ 103.8(c)(2)(i) and (ii) (2013) as a safeguard.


RIVAS, 26 I&N Dec. 130 (BIA 2013)

ID 3783 (PDF)

A waiver of inadmissibility under section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (2006), is not available on a “stand-alone” basis to an alien in removal proceedings without a concurrently filed application for adjustment of status, and a waiver may not be granted nunc pro tunc to avoid the requirement that the alien must establish eligibility for adjustment.


OTIENDE, 26 I&N Dec. 127 (BIA 2013)

ID 3782 (PDF)

Although a visa petition filed by a petitioner for a spouse may be subject to denial under section 204(c) of the Immigration and Nationality Act, 8 U.S.C. § 1154(c) (2006), based on the spouse’s prior marriage, that section does not prevent the approval of a petition filed on behalf of the spouse’s child, which must be considered on its merits to determine whether the child qualifies as the petitioner’s “stepchild” under the Act.


MONTOYA-SILVA, 26 I&N Dec. 123 (BIA 2013)

ID 3781 (PDF)

A parent’s lawful permanent resident status and residence in the United States cannot be imputed to an unemancipated minor for purposes of establishing the child’s eligibility for cancellation of removal under section 240A(a) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(a) (2006). Matter of Escobar, 24 I&N Dec. 231 (BIA 2007); and Matter of Ramirez-Vargas, 24 I&N Dec. 599 (BIA 2008), reaffirmed.


B-R-, 26 I&N Dec. 119 (BIA 2013)

ID 3780 (PDF)

An alien who is a citizen or national of more than one country but has no fear of persecution in one of those countries does not qualify as a “refugee” under section 101(a)(42) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(42) (2006), and is ineligible for asylum.


BUTT, 26 I&N Dec.108 (BIA 2013)

ID 3779 (PDF)

(1) For purposes of establishing eligibility for adjustment of status under section 245(i) of the Immigration and Nationality Act, 8 U.S.C. § 1255(i) (2006), an alien seeking to be"grandfathered" must be the beneficiary of an application for labor certification that was "approvable when filed."

(2) An alien will be presumed to be the beneficiary of a "meritorious in fact" labor certification if the application was "properly filed" and "non-frivolous" and if no apparent bars to approval of the labor certification existed at the time it was filed.


CENTRAL CALIFORNIA LEGAL SERVICES, INC., 26 I&N Dec. 105 (BIA 2013)

ID 3778 (PDF)

A recognized organization’s application for initial accreditation of a proposed representative must show that the individual has recently completed at least one formal training course that was designed to give new practitioners a solid overview of the fundamentals of immigration law and procedure.


ORTEGA-LOPEZ, 26 I&N Dec. 99 (BIA 2013)

ID 3777 (PDF)

The offense of sponsoring or exhibiting an animal in an animal fighting venture in violation of 7U.S.C. § 2156(a)(1) (2006) is categorically a crime involvingmoral turpitude.


G-K-, 26 I&N Dec. 88 (BIA 2013)

ID 3776 (PDF)

(1) The United Nations Convention Against Transnational Organized Crime, Nov. 15, 2000, 2225 U.N.T.S. 209 (“UNTOC”), which is intended to help protect witnesses of transnational organized crime from retaliation and intimidation, does not provide an independent basis for relief from removal in immigration proceedings.

(2) The objectives of the UNTOC are advanced in the United States through existing immigration laws and regulations, including the S, T, and U nonimmigrant visas and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted and opened for signature Dec. 10, 1984, G.A. Res. 39/46. 39 U.N. GAORSupp.No. 51, at 197,U.N.Doc.A/RES/39/708 (1984) (entered into force June 26, 1987; for the United States Apr. 18, 1988).

(3) The Board of Immigration Appeals and the Immigration Judges do not have the authority to rule on the constitutionality of the statutes they administer and therefore lack jurisdiction to address a claimthat the statute barring relief for particularly serious crimes is void for vagueness.


CORTES MEDINA, 26 I&N Dec. 79 (BIA 2013)

ID 3775 (PDF)

The offense of indecent exposure in violation of section 314(1) of the California Penal Code, which includes the element of lewd intent, is categorically a crime involving moral turpitude.


SANCHEZ-LOPEZ, 26 I&N Dec. 71 (BIA 2012)

ID 3774 (PDF)

The offense of stalking in violation of section 646.9 of the California Penal Code is “a crime of stalking” under section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2006).


VALENZUELA-FELIX, 26 I&N Dec. 53 (BIA 2012)

ID 3773 (PDF)

When theDepartment ofHomeland Security paroles a returning lawful permanent resident for prosecution, it need not have all the evidence to sustain its burden of proving that the alien is an applicant for admission but may ordinarily rely on the results of a subsequent prosecution to meet that burden in later removal proceedings.


M-H-, 26 I&N Dec. 46 (BIA 2012)

ID 3772 (PDF)

The holding in Matter of N-A-M-, 24 I&N Dec. 336 (BIA 2007), that an offense need not be an aggravated felony to be considered a particularly serious crime for purposes of barring asylum or withholding of removal, should be applied to cases within the jurisdiction of the United States Court of Appeals for the Third Circuit.


SANCHEZ-HERBERT, 26 I&N Dec. 43 (BIA 2012)

ID 3771 (PDF)

Where an alien fails to appear for a hearing because he has departed the United States, termination of the pending proceedings is not appropriate if the alien received proper notice of the hearing and is removable as charged.


DAVEY, 26 I&N Dec. 37 (BIA 2012)

ID 3770 (PDF)

(1) For purposes of section 237(a)(2)(B)(i) of the Immigration and Nationality Act, 8U.S.C. § 1227(a)(2)(B)(i) (2006), the phrase “a single offense involving possession for one’s own use of thirty grams or less of marijuana” calls for a circumstance-specific inquiry into the character of the alien’s unlawful conduct on a single occasion, not a categorical inquiry into the elements of a single statutory crime.

(2) An alien convicted of more than one statutory crime may be covered by the exception to deportability for an alien convicted of “a single offense involving possession for one’s own use of thirty grams or less ofmarijuana” if all the alien’s crimeswere closely related to or connected with a single incident in which the alien possessed 30 grams or less of marijuana for his or her own use, provided that none of those crimeswas inherently more serious than simple possession.


M-Z-M-R-, 26 I&N Dec. 28 (BIA 2012)

ID 3769 (PDF)

(1) In assessing an asylum applicant’s ability to internally relocate, an Immigration Judge must determine whether the applicant could avoid future persecution by relocating to another part of the applicant’s country of nationality and whether, under all the circumstances, it would be reasonable to expect the applicant to do so.

(2) For an applicant to be able to internally relocate safely, there must be an area of the country where the circumstances are substantially better than those giving rise to a well-founded fear of persecution on the basis of the original claim.

(3) If an applicant is able to internally relocate, an Immigration Judge should balance the factors identified at 8 C.F.R. § 1208.13(b)(3) (2012) in light of the applicable burden of proof to determine whether it would be reasonable under all the circumstances to expect the applicant to relocate.


LEAL, 26 I&N Dec. 20 (BIA 2012)

ID 3768 (PDF)

The offense of “recklessly endangering another person with a substantial risk of imminent death” in violation of section 13-1201(A) of the Arizona Revised Statutes is categorically a crime involving moral turpitude under the definition in Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008), even though Arizona law defines recklessness to encompass a subjective ignorance of risk resulting from voluntary intoxication.


Y-N-P-, 26 I&N Dec. 10 (BIA 2012)

ID 3767 (PDF)

An applicant for special rule cancellation of removal under section 240A(b)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(2) (2006), cannot utilize a waiver of inadmissibility under section 212(h) of the Act, 8 U.S.C. § 1182(h) (2006), to overcome the section 240A(b)(2)(A)(iv) bar resulting from inadmissibility under section 212(a)(2).


E-A-, 26 I&N Dec. 1 (BIA 2012)

ID 3766 (PDF)

(1) In assessing whether there are serious reasons for believing that an applicant for asylum or withholding of removal has committed a serious nonpolitical crime, an Immigration Judge should balance the seriousness of the criminal acts against the political aspect of the conduct to determine whether the criminal nature of the acts outweighs their political character.

(2) When considered together, the applicant’s actions as a member of a group that burned passenger buses and cars, threwstones, and disrupted the economic activity of merchants in the market, while pretending to be from the opposition party, reached the level of serious criminal conduct that, when weighed against its political nature, constituted a serious nonpolitical crime.



Posted in BIA, BIA Precedent Decisions, BIA Precedent Decisions Volume 26, Board of Immigration Appeals, Executive Office for Immigration Review | Tagged | Leave a comment

CA7 holds IJ has jurisdiction to grant a waiver of inadmissibility to a U Visa applicant under 8 U.S.C.S. § 1182(d)(3)(A)

The IJ erred in declining to grant the alien’s request for a waiver of inadmissibility because the IJ had jurisdiction to grant a waiver of inadmissibility to a U Visa applicant under 8 U.S.C.S. § 1182(d)(3)(A). 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.

L has lived in the U.S. since 1987 and was a victim of armed kidnapping and sexual assault, in 2006, because of her brother-in-law’s drug dealings. Drugs were subsequently found in her garage and, although she accepted a plea agreement to get probation and remain with her four children (U.S. citizens), she maintains that she was not involved in the drug trade. L applied for a U Visa under the Victims of Trafficking and Violence Protection Act, 114 Stat. 1464 to forestall her impending removal. The decision whether to grant a U Visa to a crime victim who is otherwise ineligible for admission is discretionary and is exercised through USCIS, 8 U.S.C. 1101(a)(15)(U). USCIS refused to waive her inadmissibility stemming from her uninspected entry and drug conviction. Facing certain removal, she asked the Immigration Judge to determine independently whether to waive her inadmissibility. The IJ declined and found that USCIS alone had jurisdiction to provide a waiver. The Board of Immigration Appeals affirmed. The Seventh Circuit remanded to the IJ with instructions to consider the waiver request under 8 U.S.C. 1182, noting that ambiguities in the “labyrinthine statutory structure” should be resolved in favor of the alien.

Congress created the U Visa as part of the Victims of Trafficking and Violence Protection Act of 2000. 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. 8 U.S.C.S. §§ 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.

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, 8 U.S.C.S. § 1101(a)(15)(U), and is exercised through USCIS, an office within the Department of Homeland Security 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, 8 U.S.C.S. § 1184(p)(2)(A), and USCIS has filled that quota every year since it began issuing the visas in 2008. The allowance fills quickly.

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). The Department of Homeland Security initiates the removal process. It pursues it as an administrative proceeding within the Executive Office for Immigration Review, an arm of the Department of Justice. The removal proceeding is first heard by an immigration judge, with the possibility of appeal to the Board of Immigration Appeals; a petition for review from a final order of removal can be brought to the court of appeals for the circuit in which the immigration judge’s hearing took place, 8 U.S.C.S. § 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. 8 U.S.C.S. § 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.S. § 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.S. § 1182(d).

When the U Visas were first created, discretion to grant both the visas themselves and 8 U.S.C.S. § 1182(d)(14) waivers of inadmissibility was vested in the Attorney General. 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 § 1182(d)(14) waivers was transferred to the Department of Homeland Security in 2006, before any visas were issued. Department of Homeland Security regulations regarding the issuance of U Visas were completed in 2007, and the first U Visa was issued in 2008.

Though the court does not have jurisdiction to review discretionary decisions of the Attorney General or the Secretary of Homeland Security, 8 U.S.C.S. § 1252(a)(2)(B)(ii), the court does have jurisdiction over questions of law raised in a petition for review, § 1252(a)(2)(D). The appellate court reviews de novo the Board of Immigration Appeals’ legal conclusions, as well as those of the immigration judge insofar as the Board adopted them.

Waivers of inadmissibility necessarily relieve applicants of the effects of past conduct, but this does not make the waivers themselves retroactive. A waiver is retroactive when it works to salvage relief previously granted for which the applicant was not qualified, and thus was void from the outset.

There is no rule that encourages or compels courts to defer to an agency’s interpretation of a different agency’s regulations. Interpretations that are flatly at odds with the language of a regulation cannot be followed, because an agency cannot by regulation contradict a statute, but only supplement it. Moreover, flat contradiction is not the only way in which an inconsistency can arise. Interpretations can also be objectionable if they unduly restrict the plain language set forth in the regulation, or because the agency’s stated position is not in fact an interpretation of the regulation at all.

To be consistent with a regulation, an agency’s interpretation must actually construe provisions of that regulation; it is not enough to identify a regulation that addresses an associated matter and tack on requirements that are conjured from thin air. Otherwise deference would be a means for agencies to accomplish an end-run around notice-and-comment rulemaking by calling their new rules interpretations of old ones.

In considering whether the Department of Homeland Security regulations, as interpreted by the Board of Immigration Appeals, are entitled to deference under Chevron, the first question would be whether Congress had unambiguously expressed its intent on the matter. If the answer were yes, that would be the end of things. If it were no, the next question would be whether the agency’s construction is a permissible interpretation of the statute.

The Department of Homeland Security has no authority to promulgate a regulation purporting to define the immigration judge’s jurisdiction. More generally, there is nothing in either 8 U.S.C.S. §§ 1101(a)(15)(U) or 1182(d) to suggest Congress intended to delegate to the Department of Homeland Security the authority to determine which agency is empowered to consider waivers of inadmissibility necessary for different forms of immigration relief. Any attempt to read such a delegation into Congress’s silence would fail for want of an intelligible principle to guide the agency’s discretion.

8 U.S.C.S. § 1182(d)(14) gives the Secretary of Homeland Security authority to waive most statutory grounds for inadmissibility for U Visa applicants if the Secretary considers it to be in the public or national interest to do so. But the fact that only the Department of Homeland Security may grant waivers under § 1182(d)(14) does not tell whether that provision is the only means by which an applicant can obtain a waiver. Nothing in § 1182(d) says that it is, nor is such language found elsewhere in the statute.

The plain language of 8 U.S.C.S. § 1182(d)(3)(A) grants to the Attorney General authority to waive the inadmissibility of an alien applying for a temporary nonimmigrant visa, subject only to explicit exceptions (e.g., espionage, attempted overthrow of the government, potentially serious adverse foreign policy consequences, and participation in genocide).

A court is not free to write in a limitation on the Attorney General’s powers that Congress did not impose.

From the time it was first passed and continuing to the present day, 8 U.S.C.S. § 1182(d)(14) has given the identified department head (whether the Attorney General or the Secretary of Homeland Security) the discretionary power to waive grounds for inadmissibility found anywhere in the statute other than § 1182(d)(3)(E). This power is more expansive than the Attorney General’s waiver authority under § 1182(d)(3)(A), which is not available for aliens inadmissible under paragraphs § 1182(a)(3)(A)(i)(I), (a)(3)(A)(ii), (a)(3)(A)(iii), and (a)(3)(C), as well as those inadmissible under § 1182(a)(3)(E). Accordingly, § 1182 (d)(14) was necessary and not redundant insofar as it created an even greater power to grant a waiver of inadmissibility for purposes of a U Visa than was available in the preexisting catch-all provision. Far from repealing § 1182(d)(3)(A), the newer provision was a context-specific enhancement. The only other way § 1182(d)(14) could preclude the Attorney General from granting a waiver of inadmissibility to a U Visa applicant is if Congress impliedly repealed that power when it amended the statute to transfer discretion to the Secretary of Homeland Security. But this amendment does not provide the basis for a finding of implied repeal.

Absent a clearly expressed congressional intention, an implied repeal will only be found where provisions in two statutes are in irreconcilable conflict, or where the latter Act covers the whole subject of the earlier one and is clearly intended as a substitute.

8 U.S.C.S. § 1182(d)(14) and (d)(3)(A) waivers can and do coexist, and an immigration judge has jurisdiction to grant a waiver of inadmissibility to a U Visa applicant under § 1182(d)(3)(A).

There is a long-standing principle of construing any lingering ambiguities in deportation statutes in favor of the alien.
_________________________________________________________________________________________
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 October 29, 2013.
Decided March 12, 2014.

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/uscisapproves-10000-u-visas-5th-straight-fiscal-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 business in the wake of these events. Lacking a stable source of income, they fell on hard times. L.D.G.’s husband ultimately made the ill-fated decision to enter the drug trade to support the family, a fact L.D.G. maintains that she learned only when police pulled her over in June 2007 and searched her car for drugs. She later discovered that the police had executed a search warrant on her home that same day and found two kilograms of cocaine in the garage. She and her husband were arrested and charged with possession of a controlled substance with intent to deliver. L.D.G. maintains her innocence to this day, but she accepted a plea deal carrying a sentence of probation and time served in order to return to her children. Her husband was sentenced to five years in state prison, where he remains incarcerated.

In November 2007, DHS initiated removal proceedings against L.D.G. under 8 U.S.C. § 1182(a)(6)(A)(i), which makes removable a noncitizen present in the United States without having been admitted or paroled. She initially sought and was granted a continuance of her immigration case in order to pursue a U Visa. After receiving her application, USCIS identified additional reasons why she should be found inadmissible: her conviction of a crime involving moral turpitude, 8 U.S.C. § 1182(a)(2)(A)(i)(I); her conviction of a controlled substance crime, id. § 1182(a)(2)(A)(i)(II); and her status as a person who “the Attorney General knows or has reason to believe … is or has been an illicit trafficker in any controlled substance,” id. § 1182(a)(2)(C). The agency declined to waive her inadmissibility, and without a waiver her U Visa application was denied as a matter of course. USCIS reopened and reconsidered the waiver matter in May 2010 on L.D.G.’s motion, but it again denied the waiver that September. L.D.G. then filed an administrative appeal (within DHS) of the decision, which was available to her under the statute in place at the time; that appeal is still pending.

Meanwhile, L.D.G.’s immigration proceedings—which were continued four times while she pursued the waiver from USCIS—resumed in the immigration court after USCIS issued its final denial in September 2010. Her removal hearing took place on March 30, 2011. There she conceded that she was removable and ineligible for cancellation of that removal. See 8 U.S.C. § 1229b. She urged the IJ, however, to consider anew her application for a waiver of inadmissibility so that she could continue her pursuit of a U Visa. She argued that the IJ had independent and concurrent jurisdiction to grant such a waiver under 8 U.S.C. § 1182(d)(3)(A), and that such jurisdiction was unaffected by USCIS’s recent denial of her waiver application under section 1182(d)(14). She also clarified that she was not asking for a direct review of her U Visa application itself, but only the waiver application.

The IJ found that he lacked jurisdiction to grant this relief. He looked first to the DHS regulations governing U Visas, in particular 8 C.F.R. § 214.14(c)(1), which states, “USCIS has sole jurisdiction over all petitions for U nonimmigrant status.” He also noted that the regulation establishing USCIS’s procedure for handling waiver applications, 8 C.F.R. § 212.17, placed the granting of waivers within USCIS’s discretion. See id. § 212.17(b). He concluded that the Illegal Immigration Reform and Immigrant Responsibilities Act of September 30, 1996, “specifically eliminate[d] the Immigration Court jurisdiction over non-immigrant admissions and aliens seeking Section 212(d)(3) [8 U.S.C. § 1182(d)(3)] waivers.”

The Board adopted the IJ’s reasoning and affirmed on appeal. It found the matter controlled by 8 C.F.R. § 212.17, which it read as “specify[ing] that a waiver in conjunction with a U visa is exclusively within the jurisdiction of the Department of Homeland Security.” Believing that L.D.G. was applying for a retroactive waiver because it was her illegal entry that led to inadmissibility, the Board relied on this court’s holding in Borrego v. Mukasey, 539 F.3d 689, 693 (7th Cir. 2008), to the effect that a waiver under section 1182(d)(3) cannot be granted retroactively in immigration proceedings. Noting that L.D.G. was not denied an initial opportunity to seek a waiver under section 1182(d)(14) from USCIS, the Board concluded that the IJ was without jurisdiction and dismissed the appeal. L.D.G. then filed this timely petition for review. See 8 U.S.C. § 1252.

III

Though we do not have jurisdiction to review discretionary decisions of the Attorney General or the Secretary of Homeland Security, 8 U.S.C. § 1252(a)(2)(B)(ii), we do have jurisdiction over questions of law raised in a petition for review, see id. § 1252(a)(2)(D). We review de novo the Board’s legal conclusions, as well as those of the IJ insofar as the Board adopted them. Kiorkis v. Holder, 634 F.3d 924, 928 (7th Cir. 2011).

Before turning to the main event, we must take care of a preliminary matter: the Board’s impression that L.D.G. was pursuing a retroactive waiver under section 1182(d)(3). That is not correct. The relief she seeks is entirely forwardlooking. The comparison to Borrego is therefore inapposite, although contrasting the cases is useful for illustrating the Board’s error. In Borrego, the petitioner on an earlier occasion had been caught using a fake name at the border while attempting to enter the United States, and as a result she was barred from entering the country for five years. 539 F.3d at 689-90. Despite the bar, she successfully obtained a B-2 (tourist) visa in her own name less than four years later. When she was found out and put in removal proceedings, she sought a retroactive waiver under section 1182(d)(3)(A) in order to seek an adjustment of status. Id. at 691. Her B-2 visa was facially invalid; it could be revived only if her inadmissibility was waived retroactively, which would have made her eligible to receive the visa four years earlier.

L.D.G.’s situation is quite different. Unlike the petitioner in Borrego, L.D.G. does not yet have a visa. She seeks waiver of her grounds for inadmissibility only to gain eligibility for a U Visa in the future. Waivers of inadmissibility necessarily relieve applicants of the effects of past conduct, but this does not make the waivers themselves retroactive. A waiver is retroactive when it works to salvage relief previously granted for which the applicant was not qualified, and thus was void from the outset. L.D.G., by contrast, has not obtained any relief at all. She is seeking a waiver of inadmissibility in order to qualify for a new U Visa. Borrego presents no barrier to the IJ’s providing this relief.

With that settled, we turn to the central question presented: whether the IJ had jurisdiction to consider a waiver under section 1182(d)(3)(A).

IV

For all of the complexities of immigration statutes, the decisions of the immigration courts are administrative decisions, and the government suggests our analysis would be aided by applying well-settled administrative law principles. The government sees this as an appropriate case for the considerable deference owed to agencies’ interpretations of their own regulations called for by Auer v. Robbins, 519 U.S. 452, 461 (1997). It argues that the Board’s determination that USCIS had exclusive jurisdiction to consider waivers of inadmissibility predicate to U Visas was just an interpretation of the U Visa regulation found at 8 C.F.R. §§ 214.14, 212.17. If the government were correct, the Board’s interpretation would be controlling unless it was “plainly erroneous or inconsistent with the regulation.” Auer, 519 U.S. at 461 (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 359 (1989)).

But the government’s argument slides past some important details, which taken together make the Board’s interpretation a poor candidate for Auer deference twice over. First, the most basic requirement—that the agency be interpreting its own (ambiguous) regulation—is missing here. See Christopher v. Smithkline Beecham Corp., 132 S. Ct. 2156, 2166 (2012). Sections 214.14 and 212.17 were promulgated by DHS. The Board is part of DOJ. There is no rule, in Auer or elsewhere, that encourages or compels courts to defer to an agency’s interpretation of a different agency’s regulations, and we decline to invent one here.

Second, even if deference extended to sister agencies, it is due only if an interpretation is not plainly erroneous or inconsistent with the regulation. Interpretations that are flatly at odds with the language of a regulation cannot be followed, because “an agency cannot by regulation contradict a statute, but only supplement it.” Keys v. Barnhart, 347 F.3d 990, 993 (7th Cir. 2003). Moreover, flat contradiction is not the only way in which an inconsistency can arise. Interpretations can also be objectionable if they unduly restrict the plain language set forth in the regulation, see Joseph v. Holder, 579 F.3d 827, 833-34 (7th Cir. 2009), or because the agency’s stated position is not in fact an “interpretation” of the regulation at all. The latter is the case here: the regulations at issue (8 C.F.R. §§ 214.14, 212.17) are silent on the question whether USCIS’s jurisdiction over waivers of inadmissibility predicate to U Visas is or is not exclusive. The regulations give USCIS sole jurisdiction to provide U Visas themselves, 8 C.F.R. § 214.14(c)(1), but that is neither important here nor a surprise: that exclusivity is mandated by 8 U.S.C. § 1101(a)(15)(U), and is a separate matter from jurisdiction over waivers of inadmissibility. The regulations also establish the procedures by which an applicant must submit a waiver petition, 8 C.F.R. § 212.17, and the requirements for obtaining a visa, 8 C.F.R. § 214.14(c). We have no reason to question the validity of these provisions, but again, they have nothing to do with whether the IJ may grant a waiver of inadmissibility under section 1182(d)(3)(A) that would allow a petitioner to obtain a U Visa. To be consistent with the regulation, an agency’s “interpretation” must actually construe provisions of that regulation; it is not enough to identify a regulation that addresses an associated matter and tack on requirements that are conjured from thin air. Otherwise Auer deference would be a means for agencies to accomplish an end-run around notice-and-comment rulemaking by calling their new rules “interpretations” of old ones.

The deference owed to the Board’s interpretation of the relevant regulations may be unimportant in any event. Any interpretation would still need to be consistent with the statute. From that point of view, we might consider whether the DHS regulations, as interpreted by the Board, are entitled to deference under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). The first question would be whether Congress had unambiguously expressed its intent on the matter. If the answer were yes, that would be the end of things. If it were no, the next question would be whether the agency’s construction is a permissible interpretation of the statute. Id. at 842-43. We need not pursue this further, however, because DHS has no authority to promulgate a regulation purporting to define the IJ’s jurisdiction. More generally, there is nothing in either 8 U.S.C. § 1101(a)(15)(U) or § 1182(d) to suggest Congress intended to delegate to DHS the authority to determine which agency is empowered to consider waivers of inadmissibility necessary for different forms of immigration relief. Any attempt to read such a delegation into Congress’s silence would fail for want of an intelligible principle to guide the agency’s discretion. See, e.g., Loving v. United States, 517 U.S. 748, 771 (1996). Accordingly, if DHS has exclusive jurisdiction over waivers of inadmissibility for U Visa applicants, that exclusivity must flow directly from statute, rather than from any regulation DHS has issued.

V

We are left, therefore, with a purely legal question: is the authority given to DHS (and exercised by USCIS) in 8 U.S.C. § 1182(d)(14) the exclusive path for waivers of inadmissibility for U Visa applicants? If so, then the case is over, because it is plain that the waiver power in section 1182(d)(14) can be exercised only by DHS. That subsection gives the Secretary of Homeland Security authority to waive most statutory grounds for inadmissibility for U Visa applicants “if the Secretary… considers it to be in the public or national interest to do so.” 8 U.S.C. § 1182(d)(14). But the fact that only DHS may grant waivers under section 1182(d)(14) does not tell us whether that provision is the only means by which an applicant can obtain a waiver. Nothing in section 1182(d) says that it is, nor can we find such language elsewhere in the statute.

Instead, we see that the plain language of section 1182(d)(3)(A) grants to the Attorney General authority to waive the inadmissibility of “an alien” applying for a temporary nonimmigrant visa, subject only to explicit exceptions that do not apply here (e.g., espionage, attempted overthrow of the government, potentially serious adverse foreign policy consequences, and participation in genocide). Conspicuously missing from the list of exceptions is the situation now before us. We are not free to write in a limitation on the Attorney General’s powers that Congress did not impose. We thus conclude that section 1182(d)(3)(A) permits the Attorney General to waive the inadmissibility of U Visa applicants like L.D.G.

If the Attorney General were divested of that power to waive in U Visa cases, it could only be because section 1182(d)(14) effected a partial implied repeal of his power under subsection (d)(3)(A). Recall that when section 1182(d)(14) was added to the U.S. Code in 2000, it gave all discretion to waive inadmissibility to the Attorney General. The coexistence of the prior version of section 1182(d)(14) with section 1182(d)(3)(A) creates some awkwardness. If we accept that waivers of inadmissibility for U Visa applicants were available under 1182(d)(3)(A) from the start, then we risk calling 1182(d)(14) redundant, which is an outcome we strive to avoid when interpreting statutes. See, e.g., In re Merchants Grain, Inc., 93 F.3d 1347, 1353-54 (7th Cir. 1996). Conversely, if we find that section 1182(d)(14) imposes a restriction on the Attorney General’s otherwise facially valid power to grant such waivers under section 1182(d)(3)(A), we would be recognizing a partial implied repeal of the authority granted by the latter section. This creates its own problems, given the presumption against such repeals and the fact that the later statute does not meet the usual requirements for an implied repeal, such as an irreconcilable conflict or an effort to cover the whole of the subject matter of the former statute and act as a clear substitute. See Carcieri v. Salazar, 555 U.S. 379, 395 (2009).

Upon closer examination of section 1182(d)(14), we conclude that the redundancy problem is not so stark after all. From the time it was first passed and continuing to the present day, section 1182(d)(14) has given the identified department head (whether the Attorney General or the Secretary of Homeland Security) the discretionary power to waive grounds for inadmissibility found anywhere in the statute “other than paragraph [a](3)(E).” 8 U.S.C. § 1182(d)(14). This power is more expansive than the Attorney General’s waiver authority under section 1182(d)(3)(A), which is not available for aliens inadmissible under paragraphs (a)(3)(A)(i)(I), (a)(3)(A)(ii), (a)(3)(A)(iii), and (a)(3)(C), as well as those inadmissible under (a)(3)(E). Accordingly, subsection (d)(14) was necessary and not redundant insofar as it created an even greater power to grant a waiver of inadmissibility for purposes of a U Visa than was available in the preexisting catch-all provision. Far from repealing section 1182(d)(3)(A), the newer provision was a context-specific enhancement.

The only other way section 1182(d)(14) could preclude the Attorney General from granting a waiver of inadmissibility to a U Visa applicant is if Congress impliedly repealed that power when it amended the statute to transfer discretion to the Secretary of Homeland Security. But this amendment does not provide the basis for a finding of implied repeal. “[A]bsent a clearly expressed congressional intention,… [a]n implied repeal will only be found where provisions in two statutes are in irreconcilable conflict, or where the latter Act covers the whole subject of the earlier one and is clearly intended as a substitute.” Carcieri, 555 U.S. at 395 (second alteration in original) (internal quotation marks omitted). Here, in the face of silence by Congress, we have two statutory provisions that are capable of coexistence if they are understood to provide dual tracks for a waiver determination. The later-enacted law (1182(d)(14)) does not cover the whole subject matter of the former (1182(d)(3)(A)). In fact, it was originally offered as a supplement; it would be odd now to find it a substitute for the blanket waiver provision. In the absence of a clear indication by Congress to the contrary, we find that section 1182(d)(14) and section 1182(d)(3)(A) waivers can and do coexist, and that the IJ has jurisdiction to grant a waiver of inadmissibility to a U Visa applicant under section 1182(d)(3)(A).

This is the best we can make of an ambiguous statutory scheme. We are encouraged, however, by the fact that there is reason to believe that Congress intended this result. Though petitioner is seeking only a U Visa, many noncitizens placed in removal proceedings will apply for a variety of forms of relief from removal. For example, K-1 and K-2 visas allow the fiancés of U.S. citizens and their children to remain in the United States temporarily in order to marry as planned; K-3 and K-4 visas provide the same right to noncitizen spouses awaiting permanent resident status. See 8 U.S.C. §§ 1184(d), 1184(r). This court has considered and approved the use of waivers of inadmissibility under section 1182(d)(3) by a noncitizen in removal proceedings in order to obtain a K-3 visa. See Atunnise v. Mukasey, 523 F.3d 830, 837-38 (7th Cir. 2008). Other avenues of relief from removal, such as Temporary Protected Status under 8 U.S.C. § 1254a or withholding of removal under the Convention Against Torture, see 8 C.F.R. § 208.16(c), also require an otherwise inadmissible noncitizen to obtain a waiver before relief can be granted. See 8 U.S.C. § 1254a(c)(2).

With so many avenues of relief available and all of them requiring waivers of inadmissibility, allowing the IJ to make a global resolution of waiver requests under section 1182(d)(3) offers efficiency advantages over compartmentalizing waiver decisions whenever a statute gives a second agency more targeted waiver authority. Efficiency is no small consideration in an administrative system as backlogged as the U.S. immigration bureaucracy has been. Noncitizens who ultimately were granted relief waited an average of 898 days nationwide for their immigration cases to reach an outcome as of October 2013. See Wait for Immigration Relief Longest in Nebraska, Oregon, Illinois Courts, TRANSACTIONAL RECORDS ACCESS CLEARINGHOUSE (Nov. 12, 2013), http://trac.syr.edu/whatsnew/email.131112.html (last visited Mar. 12, 2014). This number jumps to 1149 days in Illinois, where L.D.G.’s case was heard. Id. And the backlog shows no signs of abating; nationally, the average waiting period has increased 37% over the last five years, from 657 days in fiscal year 2009. Id.

Two potential scenarios can arise when the IJ is asked to make a global waiver determination under section 1182(d)(3). If the IJ grants a waiver of inadmissibility, the noncitizen can directly seek the relevant relief (such as a nonimmigrant visa) from the appropriate agency without going through whatever waiver process the agency affords. Alternatively, if the IJ denies a waiver, the noncitizen can still seek a waiver from the relevant agency if a statute provides for it. Either way, relatively little time is lost. The IJ will become familiar with the facts necessary to make a waiver determination as part of the adjudication of the overall removal proceeding. Concurrent jurisdiction over U Visa waivers, shared by DOJ and DHS, thus has its advantages for the administration of the immigration system when compared to the possibility of exclusive USCIS jurisdiction. Finally, it is important to recall that in the final analysis, even if a waiver is granted USCIS retains the authority to grant or to deny the U Visa itself.

A procedure under which the applicant obtains a waiver of inadmissibility from one agency in order to obtain a visa from another agency is neither unprecedented nor unique. For example, USCIS is responsible for granting the K-series visas available to noncitizen fiancés and spouses of U.S. citizens, but waivers of inadmissibility in order to obtain these visas can be granted by the IJ under section 1182(d)(3). See Atunnise, 523 F.3d at 836-37. Indeed, we cannot find any provision under which IJs themselves grant visas; a waiver of inadmissibility by an IJ is always used to clear the way for another department to grant the visa. To find the IJ did not have jurisdiction to consider a waiver in the U Visa context under section 1182(d)(3) because the visa itself had to be granted by a different agency would create a needless inconsistency between U Visas and all others.

Our decision today comports with the “longstanding principle of construing any lingering ambiguities in deportation statutes in favor of the alien.” I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987). We express no opinion on the merits of petitioner’s waiver claim, or the significance of the fact that USCIS has been conducting parallel proceedings that (to our knowledge) have not yet been resolved on appeal. We hold only that the Board was incorrect to hold that the IJ lacked jurisdiction to consider L.D.G’s waiver request. We therefore GRANT the petition for review and VACATE the IJ’s order of removal. We send petitioner’s case back to the IJ with instructions to consider petitioner’s waiver request under 8 U.S.C. § 1182(d)(3)(A).

Posted in 7th Circuit, 7th Circuit Cases- Aliens, IJs Have U Visa Waiver Authority, U nonimmigrant status | Leave a comment

CA7 finds that 8 U.S.C. 1447(b) gives District court exclusive jurisdiction over the naturalization application until remanded

When an applicant for naturalization had properly invoked 8 U.S.C.S. § 1447(b) and brought an application to the district court, that court had exclusive jurisdiction over the naturalization application unless and until the matter was remanded to the agency; The U.S. Citizenship and Immigration Service had no jurisdiction to act on the alien’s naturalization application, and his lawsuit was not moot.

Aljabri, born in Jordan, married a U.S. citizen in 1997 and became a lawful permanent resident in 2000. In 2003, he sought naturalization under 8 U.S.C. 1430. USCIS conducted an interview and then delayed for nine years. In 2007 Aljabri was convicted of wire fraud, money laundering, and structuring transactions not to trigger financial institution reporting requirements. He was sentenced to 84 months in prison. In 2008 DHS alleged that Aljabri was removable under 8 U.S.C. 1227(a)(2)(A)(iii), having been convicted of a crime causing victims a loss of more than $10,000. He was ordered removed in absentia. He filed suit, asking the district court either to naturalize him or declare him a U.S. citizen based on the still-pending 2003 application. The district court held that it lacked subject‐matter jurisdiction and dismissed in January, 2012. On May 3, 2012, USCIS denied the naturalization petition, stating that the final order of removal meant that he was no longer a lawful permanent resident and only permanent residents can be naturalized and that Aljabri could not demonstrate the good moral character necessary for naturalization. The Seventh Circuit reversed. The district court overlooked 8 U.S.C. 1447(b), which gives the court exclusive jurisdiction over the naturalization application until the matter is remanded to the agency.

The appellate court is required to consider subject-matter jurisdiction as the first question in every case, and the appellate court must dismiss this suit if such jurisdiction is lacking, Fed. R. Civ. P. 12(h)(3). It is the appellate court’s obligation, therefore, to address the issue independently.

Though 8 U.S.C.S. § 1429 would prevent a court from approving a naturalization application after removal proceedings have begun or a final finding of deportability has been made, it affects only relief. It is not jurisdictional. Thus, for example, a court could stay a suit to await the outcome of a removal proceeding without straying beyond its prescribed jurisdiction.

The Constitution limits the court’s jurisdiction to live cases and controversies, U.S. Const. art. III, § 2. A case is moot, and thus falls outside of the judicial power conferred in Article III, if the outcome will no longer settle an active dispute about the parties’ legal rights. The appellate court is required to dismiss a case that has become moot at any stage in the litigation.

8 U.S.C.S. § 1447(b) states that after the agency has slept on an application for the 120-day period and an applicant files suit, the court may either determine the matter or remand the matter, with appropriate instructions, to the Service to determine the matter.

In a collateral order doctrine situation, the district court retains jurisdiction over the case during the pendency of the appeal, 28 U.S.C.S. § 1292(b).

____________________________________________

SALEM FUAD ALJABRI, Plaintiff-Appellant,
v.
ERIC H. HOLDER, JR., et al. Defendants-Appellees.
No. 12-1229.

United States Court of Appeals, Seventh Circuit.
Argued September 30, 2013.
Decided March 11, 2014.

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

WOOD, Chief Judge.

Salem Fuad Aljabri was born in Jordan, but he is of Palestinian descent. In 1997, he married a U.S. citizen; the marriage enabled him to become a lawful permanent resident in 2000. In February 2003, after three years had passed and he became eligible to be considered for naturalization under 8 U.S.C. § 1430, he filed an Application for Naturalization with U.S. Citizenship and Immigration Services (USCIS), which is part of the Department of Homeland Security (DHS). USCIS conducted a naturalization interview in July 2003 and then sat on Aljabri’s application for nearly nine years.

One might think that such a long delay would have prompted Aljabri to follow up somehow. But one would be wrong. Aljabri found his way into federal court under much worse circumstances, accused and then convicted in 2007 on multiple counts of wire fraud, 18 U.S.C. § 1343, money laundering, 18 U.S.C. § 1957(a)(1)(A)(i), and structuring (that is, deceptively organizing transactions so as not to trigger a financial institution’s reporting requirements), 31 U.S.C. § 5324(a)(3). On appeal, this court vacated the moneylaundering convictions but affirmed the wire fraud and structuring convictions. See United States v. Aljabri, 363 F. App’x 403 (7th Cir. 2010). On remand, Aljabri was resentenced to serve 84 months in prison. See United States v. Aljabri, 2013 WL 3975255 at *1 (N.D. Ill. July 30, 2013) (denying postconviction relief under 28 U.S.C. § 2255).

Catching wind of his turn to crime, DHS issued a Notice to Appear to Aljabri in 2008, alleging that he was removable from the United States under 8 U.S.C. § 1227(a)(2)(A)(iii) for having been convicted of an aggravated felony—namely, a crime causing a loss of more than $10,000 to victims. See 8 U.S.C. § 1101(a)(43)(M). (Aljabri maintains that the loss caused by his crimes was not sufficient to classify them as aggravated felonies, but that question is not relevant to this appeal.) He failed to appear at his immigration hearing in Dallas on April 28, 2010, perhaps, as he says, because he had a medical appointment that prison officials refused to reschedule, or maybe because he refused to leave his cell, as the government contends. Either way, he was ordered removed in absentia by the Immigration Judge.

Seeing the writing on the wall, Aljabri filed this lawsuit pro se in the Northern District of Illinois on February 3, 2011, asking the district court either to naturalize him or declare him a U.S. citizen based on the 2003 application for naturalization that was still languishing at USCIS. Either form of relief would have barred the government from removing him from the United States. The district court held on April 20, 2011, however, that it lacked subject-matter jurisdiction over Aljabri’s action under 8 U.S.C. § 1252(a)(2)(B)(ii), which divests courts of jurisdiction to review any discretionary decision or action by the Attorney General or the Secretary of Homeland Security under “this subchapter” (except for grants of asylum). The court dismissed the case “with prejudice for lack of subject matter jurisdiction,” and on January 10, 2012, it denied Aljabri’s motion to alter or amend its judgment. The appeal was docketed in this court on January 30, 2012.

On May 3, 2012, USCIS at last got around to acting on Aljabri’s naturalization application, which it denied on three grounds. First, it stated that it could not naturalize a person who was subject to a final order of removal. Second, it concluded that it could not naturalize Aljabri because the final order of removal meant that he was no longer a lawful permanent resident, and only permanent residents can be naturalized. Finally, it noted that Aljabri had been convicted of an aggravated felony and thus could not demonstrate the good moral character necessary for naturalization. In the meantime, Aljabri filed a motion to reopen his immigration case; initially that motion was denied, but on March 29, 2013, the Board of Immigration Appeals remanded the matter to the Dallas Immigration Court for a full opinion. Those proceedings were ongoing as of the time we heard oral argument, but their resolution does not affect the issues before us.

The government does not defend the district court’s judgment based on a lack of subject-matter jurisdiction; on appeal, it agrees with Aljabri that the district court’s jurisdictional reasoning was erroneous. Nevertheless, we are required to consider subject-matter jurisdiction as the first question in every case, see Illinois v. City of Chicago, 137 F.3d 474, 478 (7th Cir. 1998), and we must dismiss this suit if such jurisdiction is lacking, see FED. R. CIV. P. 12(h)(3). It is our obligation, therefore, to address the issue independently.

The district court relied on 8 U.S.C. § 1252(a)(2)(B)(ii) when it dismissed Aljabri’s complaint. That statute provides that no court shall have jurisdiction to review:

any … decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 1158(a) [governing asylum] of this title.

8 U.S.C. 1252(a)(2)(B)(ii). There are two problems with applying this statute to Aljabri’s case. First, it applies only to statutes “under this subchapter.” Section 1252 is in subchapter II of chapter 12 in title 8, but the naturalization statute—8 U.S.C. § 1427—is in subchapter III of the same chapter. Section 1252 is therefore by its terms inapplicable to naturalization decisions.

Second, when basing its holding on § 1252, the district court overlooked 8 U.S.C. § 1447(b), which provides:

If there is a failure to make a determination under section 1446 of this title [governing naturalization applications] before the end of the 120-day period after the date on which the examination is conducted under such section, the applicant may apply to the United States district court for the district in which the applicant resides for a hearing on the matter. Such court has jurisdiction over the matter and may either determine the matter or remand the matter, with appropriate instructions, to the Service to determine the matter.

8 U.S.C. § 1447(b). It is hard to find any ambiguity in this language: it expressly gives the district court jurisdiction over suits like Aljabri’s. He certainly waited long enough— eight years after his examination, more than 22 times as long as the required 120-day waiting period.

The district court’s slip with respect to section 1447(b) is understandable, because Aljabri’s complaint makes no reference to it. His silence, however, has no jurisdictional significance. Furthermore, as a pro se litigant Aljabri is held to a “less stringent standard” in crafting pleadings. Haines v. Kerner, 404 U.S. 519, 520 (1972). As we have noted before, sua sponte dismissals of complaints without an opportunity to respond “are hazardous … unless the defect is clearly incurable.” Frey v. EPA, 270 F.3d 1129, 1132 (7th Cir. 2001) (internal quotation marks omitted). Rather than suffer immediate dismissal, Aljabri should have been given leave to amend in order correct his complaint by stating the correct basis for jurisdiction.

Nor is 8 U.S.C. § 1429 an obstacle to jurisdiction. Section 1429 provides in relevant part:

[N]o person shall be naturalized against whom there is outstanding a final finding of deportability pursuant to a warrant of arrest issued under the provisions of this chapter or any other Act; and no application for naturalization shall be considered by the Attorney General if there is pending against the applicant a removal proceeding pursuant to a warrant of arrest issued under the provisions of this chapter or any other Act.

8 U.S.C. § 1429. Though this statute would prevent a court from approving a naturalization application after removal proceedings have begun or a final finding of deportability has been made, it affects only relief. It is not jurisdictional. Klene v. Napolitano, 697 F.3d 666, 668 (7th Cir. 2012). Thus, for example, a court could stay a suit to await the outcome of a removal proceeding without straying beyond its prescribed jurisdiction. Id.

The government agrees that the district court had subject-matter jurisdiction under § 1447(b), but it offers a new reason why jurisdiction is defective. It argues that the case is moot because USCIS acted on Aljabri’s naturalization application on May 3, 2012 (by which time the case was before this court), thereby giving him all of the relief that he could hope to receive: an answer on his application. Accordingly, says the government, there is no “case or controversy” for the district court to adjudicate and nothing to send back for more consideration.

The Constitution limits our jurisdiction to live cases and controversies. See U.S. CONST. art. III, § 2. A case is moot, and thus falls outside of the judicial power conferred in Article III, if the outcome will no longer settle an active dispute about the parties’ legal rights. See Already, LLC v. Nike, Inc., 133 S. Ct. 721, 726 (2013). We are required to dismiss a case that has become moot at any stage in the litigation. Stotts v. Cmty. Unit Sch. Dist. No. 1, 230 F.3d 989, 991 (7th Cir. 2000).

Key to the government’s mootness argument is the question whether USCIS retained jurisdiction to consider Aljabri’s naturalization application while the matter was in the courts. USCIS itself obviously thought that it did, or it would not have issued its order on May 12, 2012. But its opinion cannot be conclusive. To find an answer we must turn back to § 1447(b), which states that after the agency has slept on an application for the 120-day period and an applicant files suit, the court “may either determine the matter or remand the matter, with appropriate instructions, to the Service to determine the matter.” For the government to be correct, the statute’s effect must be to give the courts and USCIS concurrent jurisdiction over a naturalization application after a suit has been filed, rather than to divest the agency of jurisdiction once an applicant has brought her plight to court.

Our sister circuits who have addressed the issue have all rejected the government’s position. See Bustamante v. Napolitano, 582 F.3d 403, 406 (2d Cir. 2009); Etape v. Chertoff, 497 F.3d 379, 383 (4th Cir. 2007); United States v. Hovsepian, 359 F.3d 1144, 1164 (9th Cir. 2004) (en banc). We add our voice to the chorus. Like those circuits, we start with the plain language of § 1447(b), and as they did, we find it incompatible with a system of concurrent jurisdiction. See, e.g., Bustamante, 582 F.3d at 406-07. Congress gave the district courts the power to “determine the matter” once a naturalization petition is properly in front of it; it would be illogical to read this unqualified grant of power to contain an unwritten “if …,” or to give USCIS the prerogative to nullify the court’s statutory power. See Id. at 406; Etape, 497 F.3d at 383; Hovsepian, 359 F.3d at 1160. Similarly, it would render meaningless the district court’s power to “remand the matter” if the agency could act even without a remand. The meaning of “remand” is “sending something (such as a case, claim, or person) back for further action.” BLACK’S LAW DICTIONARY 1406 (9th ed. 2009) (emphasis added); see also Bustamante, 582 F.3d at 406-07.

The government attempts to craft an analogy between the scenario here and an appeal of a non-final district court order under an authorized ground of interlocutory appellate review, e.g., 28 U.S.C. § 1292, FED. R. CIV. P. 23(f), or the collateral order doctrine. In that situation, the district court retains jurisdiction over the case during the pendency of the appeal. See 28 U.S.C. § 1292(b); United States v. City of Chicago, 534 F.2d 708, 711 (7th Cir. 1976). But the district court’s jurisdiction in those cases is not really “concurrent” with that of the court of appeals, in the sense of covering the same issues. The retained jurisdiction allows the district court to proceed with other aspects of the case; it does not mean that the district court can continue to modify the same order that is up on interlocutory appeal. The latter situation would be at best wasteful of resources and at worst chaotic.

The government also directs our attention to some statutes in which Congress explicitly provided for “exclusive” district court jurisdiction over actions previously under agency jurisdiction. It sees these as similar to the immigration statutes now before us. But the statutes cited by the government all provide for judicial review of administratively final orders. Section 1447(b), in contrast, comes into effect when the agency fails to act and allows another entity to step in to fill the void. See 15 U.S.C. § 78y(a)(3) (review of final SEC orders); 7 U.S.C. § 27d(c)(3) (review of agency rules purporting to regulate hybrid instruments by the Commodity Futures Trading Commission); 7 U.S.C. § 136n(b) (review of orders refusing to cancel or suspend registration of pesticides by the Department of Agriculture). Indeed, in two of the three statutes cited by the government, the explicit reference to exclusive jurisdiction was necessary to distinguish between situations in which the courts have exclusive jurisdiction and those in which they have concurrent jurisdiction, because both types of jurisdiction are provided by the statute. See 15 U.S.C. § 78y(a)(3) (“[O]n the filing of the petition, the court has jurisdiction, which becomes exclusive on the filing of the record.”); 7 U.S.C. § 27d(c)(3) (“On the date of the filing of a petition … the court shall have jurisdiction, which shall become exclusive on the filing of [other] materials….”). These differences deprive the statutes on which the government relies of any value as guides for interpreting § 1447(b).

Finally, the government urges that we should not strip agencies of their power to act unless Congress explicitly intended such a consequence. It bases this argument on the Supreme Court’s opinion in Brock v. Pierce County, 476 U.S. 253 (1960). In that case, the Court held that a statute providing that the Secretary of Labor “shall” determine the truth of an allegation of misuse of funds within 120 days did not divest the agency of jurisdiction to recover misspent funds after the expiration of the 120-day period. Id. at 266. But the government’s reliance on Brock is odd, to say the least. Both that case and the government’s argument here depend on the absence of a statutory consequence for the agency’s failure to act. See id. at 259 (“[W]hile § 106(b) speaks in mandatory language, it nowhere specifies the consequences of a failure to make a final determination within 120 days.”). Section 1447(b), however, does spell out the consequence of USCIS’s failure to act: it authorizes the applicant to bring her naturalization application to district court after the specified time has elapsed. Brock also noted that the statute it was construing could not be read to “convey rights” on the accused party, id. at 264, whereas § 1447(b) explicitly gives a naturalization applicant the right to seek a resolution from the district court. Combined with the statutory language empowering the district court to choose between determining the matter and remanding to the agency, Brock seems more helpful to Aljabri’s argument than the government’s.

We hold, as our fellow circuits have before us, that when an applicant for naturalization has properly invoked § 1447(b) and brought an application to the district court, that court has exclusive jurisdiction over the naturalization application unless and until the matter is remanded to the agency. Therefore USCIS had no jurisdiction to act on Aljabri’s naturalization application, and his lawsuit is not moot. We express no opinion about what should happen to Aljabri’s application on remand; the district court is fully competent to sort that out and has at its disposal the full range of options given by § 1447(b).

We REVERSE the judgment of the district court and REMAND for further proceedings consistent with this opinion.

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