ASISTA

7th Rejects BIA Khan -- (d)(3) waivers for Us in proceeding

Many thanks, again, to Chuck Roth for NIJC for leading this effort.  Great job! (Gail Pendleton)

Baez-Sanchez v. Sessions, (7th Cir. Oct. 6, 2017), 
Noncitizens seeking U visas as victims of crime may need to seek waivers for inadmissibility.  By regulation, a noncitizen may invoke INA § 212(d)(14) (which is by statute entrusted to DHS) or § 212(d)(3), the general nonimmigrant waiver.  The BIA has historically exercised some authority over § 212(d)(3) waivers.  In L.D.G. v. Holder, 744 F.3d 1022 (7th Cir. 2014), the Seventh Circuit found that the BIA and IJs had (d)(3) waiver authority as to U visas.  The BIA disagreed in Matter of Khan, 26 I&N Dec. 797 (BIA 2016), doubting that (d)(3) waivers were meant for U visa applicants, suggesting that (d)(3) waivers were unavailable to noncitizens except at Ports of Entry, and finding that even if the Attorney General has (d)(3) authority, that it has not been delegated by regulation to the BIA. 
 
The Seventh Circuit rejected Matter of Khan in a published decision (Easterbrook, J.). 
 
First, the Court rejected the BIA’s finding that IJs lack authority to decide matters except where authority is delegated by regulation.  Even without a specific delegation, held the Court, 8 C.F.R. § 1003.10 provides that “IJs may exercise all of the Attorney General’s powers ‘in the cases that come before them’, unless some other regulation limits that general delegation.”
 
Second, while the government’s briefs suggested that U visa waiver authority had been entrusted to DHS rather than to the Attorney General (and thus to IJs), the BIA made no such finding in Khan.  Indeed, Khan expressly assumed that the AG may maintain some waiver authority.  26 I&N Dec. at 801.  Under the Chenery Doctrine, the government attorneys are bound by the agency’s decision; the government’s attorneys therefore could not defend Khan on the ground that the Attorney General lacks waiver authority by statute. 
 
Finally, the Board doubted that (d)(3) waivers could be sought by noncitizens within the U.S.  But U visa regulations make no such distinction.  Found the Court, “the Secretary of Homeland Security seems to believe that he has the authority to grant waivers of inadmissibility under §1182(d)(3)(A)(ii) to aliens in the United States. See 8 C.F.R. §212.17. If the Secretary can do this, why not the Attorney General?” 
 
Baez-Sanchez and L.D.G. are crucial for noncitizen victims of crime facing removal from the United States.  Allowing IJs to decide on waiver applications ensures fair process, in-person proceedings, access to counsel, reasoned decision making, and the availability of appellate review.  NIJC applauds today’s decision, and will work to ensure fair process for all noncitizens facing removal from the United States. 

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