On September 8, 2016 the Board of Immigration Appeals (BIA or Board) found that the applicable regulations at 8 C.F.R do not give on Immigration Judge (IJ)authority to grant an INA §212(d)(3)(A)(ii) waiver (“(d)(3) waiver”) to a petitioner for U nonimmigrant status who is in the U.S. The respondent was placed into proceedings and charged as removable under INA§212(d)(3)(A)(ii) for being convicted of sexual abuse of a minor, an aggravated felony. The IJ sustained the charge but respondent only sought a (d)(3) waiver in connection with his U visa petition, both filed with USCIS. The IJ administratively closed the case pending DHS’ adjudication of the U visa petition. After a failed interlocutory appeal by ICE, USCIS denied both the petition and waiver requests and the case was re-calendared.
In renewed proceedings, respondent requested a (d)(3) waiver from the IJ, who acknowledged USCIS’ exclusive jurisdiction over the U petition but asserted concurrent jurisdiction over the waiver request. She then denied the waiver as a matter of discretion. Respondent appealed and ICE, in opposition, argued against the IJ’s assumption of jurisdiction over the (d)(3) waiver.
The Board’s decision initially reaffirmed USCIS’ exclusive jurisdiction over U visa petitions and noted that Congress had enacted INA §212(d)(14) to provide a waiver of inadmissibility specifically for U visa petitioners, finding that only the Secretary of Homeland Security through USCIS has the discretion to waive grounds of inadmissibility for such petitioners.
Collaterally, the BIA stated that a (d)(3) waiver “is a general waiver that authorizes the temporary admission of nonimmigrant aliens applying for advance permission to enter” the U.S., usually filed at a port of entry or preflight inspection office. Thus, disagreeing with the Seventh Circuit Court of Appeals opinion in L.D.G. v. Holder, 744 F.3d 1022 (7th Cir. 2014), the Board held that it is unclear that Congress would have intended for IJs to have concurrent jurisdiction over (d)(3)waivers in the U visa context once it gave DHS exclusive jurisdiction over U visas. Further the BIA found that the regulations limit an IJ’s authority to adjudicate an inadmissible nonimmigrant’s request for a (d)(3) waiver to “narrow and specific circumstances”, i.e., the renewal of a waiver request by an applicant for admission (arriving alien) placed in exclusion or removal proceedings. Thus, following a recent Third Circuit cause which expressly disagreed with L.D.G., the Board found that the regulations do not give IJs authority to grant a (d)(3) waiver to a U visa petitioner in the U.S. and dismissed the appeal. Matter of Khan, 26 I&N Dec.797 (BIA 2016).
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