[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 15-14569

________________________

Agency No. A072-385-439

FINEST MERIDOR, 

 Petitioner,

versus

U.S. ATTORNEY GENERAL, 

 Respondent.

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

________________________

(June 7, 2018)

Before WILSON, JORDAN and HIGGINBOTHAM,

∗ Circuit Judges.

WILSON, Circuit Judge: 

 ∗ Honorable Patrick E. Higginbotham, United States Circuit Judge for the Fifth Circuit, sitting by 

designation. 

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Finest Meridor, a native and citizen of Haiti, seeks review of the Board of 

Immigration Appeals’ (BIA) final order of removal. That order vacated the order 

of an immigration judge (IJ), which had granted Meridor a waiver of 

inadmissibility in his pursuit of a U visa. The BIA found that IJs did not have 

authority to grant such a waiver, and, even if they did, on the merits Meridor was 

not entitled to one. On appeal, Meridor argues that the plain language of 8 U.S.C. 

§ 1182(d)(3)(A) gives IJs authority to grant waivers of inadmissibility. Meridor 

further argues that the BIA engaged in legal error in reaching its alternative 

holding that he did not merit a waiver. 

Because the plain language of § 1182(d)(3)(A) does grant authority to IJs to 

issue waivers of inadmissibility, and because the BIA committed legal error in 

reaching its alternative holding on the merits, we grant the petition to review the 

final removal order, vacate it, and remand for further proceedings. On remand, the 

BIA must reconsider its final order of removal, the IJ’s grant of a waiver of 

inadmissibility to Meridor pursuant to this plain language and the prohibition on de 

novo fact finding in its review of the IJ’s opinion.

I.

Finest Meridor arrived in the United States about 25 years ago as a political 

refugee from Haiti. Meridor and his sister fled Haiti for Guantanamo Bay, Cuba, 

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and then boarded a military plane to Miami. Meridor applied for political asylum,

but he withdrew his application after it lingered for many years.

In January 2013, the Department of Homeland Security (DHS) notified 

Meridor that he was subject to removal because he was a foreign national without a 

valid visa or passport, and because he had convictions for a crime of moral 

turpitude and controlled-substance offenses. DHS took him into custody pending 

his deportation hearing. Meridor applied for asylum and for withholding of 

removal while his case was pending. 

After a hearing, an IJ agreed that Meridor was removable due to his prior 

convictions. The IJ also denied Meridor’s request for asylum and for withholding 

of removal. Meridor moved for reconsideration, but before the IJ ruled on his 

motion, Meridor retained new counsel who believed that Meridor might be able to 

qualify for a U visa1 and therefore be able to stay in the United States. 

Meridor applied for a U visa and for a waiver of inadmissibility2 with DHS’s 

component agency, U.S. Citizenship and Immigration Services (USCIS). The IJ 

formally reopened Meridor’s file in light of his U visa application, which nullified 

 1 A U visa is a nonimmigrant visa that is available to noncitizen victims of certain crimes to 

encourage noncitizens to come forward and help law enforcement investigate and prosecute 

criminal activity. To obtain a U visa, foreign nationals must establish that they have “suffered 

substantial physical or mental abuse,” that they possess “information concerning criminal 

activity,” and that they have been “helpful” to law enforcement in “investigating or prosecuting 

criminal activity.” 8 U.S.C. § 1101(a)(15)(U). 

2 A waiver of inadmissibility provides an individual subject to removal with the opportunity to 

be admitted into the United States even though he would be disqualified for admission because 

of one or more factors set forth in 8 U.S.C. § 1182(a).

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his removal order to Haiti. Meridor moved to terminate his removal proceedings, 

and the IJ granted his motion. 

While Meridor’s applications for the U visa and waiver were pending with 

USCIS, the IJ agreed to consider the merits of the waiver application. The IJ, 

acting as the Attorney General’s delegate, stated that she had jurisdiction over the 

waiver application. She explained that Meridor’s case was “extraordinary,” and 

she therefore had discretion to grant him a waiver of inadmissibility.3

 At a 

hearing, the IJ told Meridor that she would grant him a waiver of inadmissibility, 

and that she would do so in a written decision.

Before the IJ could issue a written opinion on the waiver, USCIS denied 

Meridor’s applications for a U visa and waiver of inadmissibility. USCIS noted in 

its denial letter that Meridor was not admissible into the United States, even though 

if he were, he appeared to meet all of the other U visa eligibility criteria. USCIS 

further noted that it would not exercise its discretion to approve his waiver as a 

matter of national or public interest, and that he could not appeal the waiver 

decision. 

Three weeks later, in February 2015, the IJ issued a written decision 

granting the waiver, finding that Meridor’s criminal history and his risk of harm if 

 3 Because Meridor had convictions for dangerous crimes, he could not receive a waiver unless 

his case presented “extraordinary circumstances.” 8 C.F.R. § 212.17(b)(2); In re Jean, 23 I. & 

N. Dec. 373, 373 (U.S. Att’y Gen. 2002). 

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admitted were outweighed by his reasons for wanting to remain in the United 

States. She explained that Meridor wants to stay in the United States to support his 

family, and that his removal would result in extraordinary hardship to them. She 

also cited L.D.G. v. Holder, 744 F.3d 1022 (7th Cir. 2014), in concluding that she 

had authority to grant the waiver pursuant to § 1182(d)(3)(A). The IJ also noted 

that USCIS had authority to grant the waiver as well, pursuant to § 1182(d)(14). 

Because she had no authority to grant the U visa,4 however, the IJ entered an order 

removing Meridor to Haiti.5

The BIA, without distinguishing L.D.G., reversed the IJ’s decision to grant 

the waiver, holding that DHS—and only DHS—can grant waivers of 

inadmissibility for U visa applications. It alternatively held that even if the IJ had 

jurisdiction to grant the waiver, Meridor did not merit such a waiver. The BIA 

explained that it disagreed with the IJ’s finding that Meridor’s risk of harm was 

“greatly diminished,” and stated that Meridor’s reasons for wanting to remain in 

the United States did not outweigh his criminal history. The BIA, in turn, affirmed 

the IJ’s order of removal.

 4 USCIS has sole authority over whether to grant U visas. 8 C.F.R. § 214.14(c)(1). 

5 After this, Meridor appealed the USCIS’s earlier denial of his U visa to its Administrative 

Appeals Office (AAO). His appeal was dismissed in July 2016. First, it declined to recognize 

the IJ’s waiver. It explained that L.D.G. did not control in Meridor’s case because he resides in 

the Eleventh Circuit, not the Seventh Circuit. The AAO also stated that even if he resided in the 

Seventh Circuit, it still would not abide by the IJ’s decision because the IJ waived Meridor’s 

inadmissibility for certain reasons but not on all grounds that the USCIS denied him the waiver. 

Second, the AAO declined to grant Meridor its own waiver.

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Meridor, proceeding pro se, petitioned us to review the BIA’s decision, and 

submitted an emergency motion to stay his removal pending resolution of his case. 

We denied his emergency motion. Meridor was removed to Haiti in February 

2016, and in March 2016 we appointed him counsel. 

Meanwhile, USCIS refused to reconsider its denial of Meridor’s first request 

for a waiver, and it refused to accord the IJ’s decision any weight because the BIA 

vacated her decision. USCIS also denied Meridor’s second request for a waiver, 

filed in March 2015. Because it denied his waiver, it in turn denied his second U 

visa application on the ground that Meridor was inadmissible. 

II.

We review de novo issues concerning statutory interpretation of the 

immigration code, Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001), but 

if the statute is ambiguous or silent on the issue before us, we will defer to the 

BIA’s interpretation if it is reasonable. Assa’ad v. U.S. Att’y Gen., 332 F.3d 1321, 

1326 (11th Cir. 2003). We only review the BIA’s decision, except to the extent it 

expressly adopts the IJ’s opinion. Al Najjar, 257 F.3d at 1284. The BIA errs if it 

reviews an IJ’s factual and credibility determination for anything but clear error. 8 

C.F.R. § 1003.1(d)(3)(i).

Under 8 U.S.C. § 1182(d)(3)(A), enacted in 1952, an otherwise inadmissible 

foreign national “who is in possession of appropriate documents or is granted a 

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waiver thereof and is seeking admission, may be admitted into the United States 

temporarily as a nonimmigrant in the discretion of the Attorney General.” The 

“Attorney General” includes his delegates, including, as is relevant here, IJs under 

certain circumstances. See 8 C.F.R. § 1003.10(a) (explaining that IJs are 

“attorneys whom the Attorney General appoints as administrative judges” that 

“shall act as the Attorney General’s delegates in the cases that come before them”). 

Separately, 8 U.S.C. § 1182(d)(14), enacted in 2000, provides that “[t]he 

Secretary of Homeland Security, in the [Secretary’s6

] discretion, may waive 

[inadmissibility]” for nonimmigrants seeking U visas. A U visa applicant cannot 

appeal from a decision to deny a waiver requested under § 1182(d)(14). 8 C.F.R. 

§ 212.17(b)(3).

“The judiciary is the final authority on issues of statutory construction,” but 

“if the statute is silent or ambiguous with respect to the specific issue, the question 

for the court is whether the agency’s answer is based on a permissible construction 

 6 In the Code, this reads “in the Attorney General’s discretion.” See 8 U.S.C. § 1182(d)(14). 

This is likely a scrivener’s error; the Code should read “in the Secretary of Homeland Security’s 

discretion.” The original provision read: “The Attorney General, in the Attorney General’s 

discretion . . . .” See Victims of Trafficking and Violence Protection Act of 2000, Pub. L. 106-

386, § 1513(e), 114 Stat. 1464, 1536 (2000). In 2006, Congress made a technical amendment 

striking “Attorney General” and replacing it with “Secretary of Homeland Security” in “each 

place it appears” in subsections (13) and (14). See Violence Against Women and Department of 

Justice Reauthorization Act of 2005, Pub. L. No. 109-162, § 802(b), 119 Stat. 2960, 3054 (2006). 

The current, official version of the Code concurs that this is likely a scrivener’s error. See 8 

U.S.C. § 1182(d)(14)(2012) (footnote 5). 

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of the statute.” Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 

843 & n.9, 104 S. Ct. 2778, 2781–82 & n.9 (1984). 

III.

A.

As a threshold matter, we must explain why the BIA committed legal error 

in making its alternative holding that even if the IJ had jurisdiction to grant 

Meridor’s waiver of inadmissibility, Meridor was not entitled to one on the merits. 

In the absence of legal error, the BIA’s alternative holding would decide this case 

because its merits determination under a correct legal standard is not reviewable. 

See Arias v. U.S. Att’y Gen., 482 F.3d 1281, 1283 (11th Cir. 2007) (per curiam) 

(stating that under 8 U.S.C. § 1252(a)(2)(B)(ii) we lack jurisdiction to review 

discretionary decisions of the Attorney General or DHS Secretary, including 

denials of waivers of inadmissibility). We would issue an impermissible advisory 

opinion if we opined on the IJ’s waiver of jurisdiction when the BIA provided 

another ground that would resolve this case. See Malu v. U.S. Att’y Gen., 764 F.3d 

1282, 1290–91 (11th Cir. 2014) (explaining that if the same judgment would be 

rendered after we correct a court’s legal determination, our review amounts to 

nothing more than an advisory opinion). 

The BIA’s alternative holding cannot stand. The IJ found that Meridor’s 

risk of harm had been “greatly diminished” because he had not been in trouble 

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since 2008.7 The risk of future harm is a factual finding. See Zhu v. Att’y Gen., 

703 F.3d 1303, 1310 (11th Cir. 2013). The reversal of that determination requires 

a finding a clear error. See id. at 1315. But the BIA did not find clear error—it 

simply disagreed and “was not persuaded.” The BIA mistakenly reviewed this 

finding de novo rather than reviewing for clear error. Accordingly, the BIA’s 

alternative holding fails, and we can therefore decide the IJ’s jurisdiction over 

waivers of inadmissibility.

B.

We hold that the IJ had authority to grant Meridor a waiver under 8 U.S.C. 

§ 1182(d)(3)(A). In so holding, we agree with the Seventh Circuit that “the plain 

language of section 1182(d)(3)(A) grants to the Attorney General authority to 

waive the inadmissibility of [an individual subject to removal] applying for a 

temporary nonimmigrant visa,” and therefore “permits the Attorney General to 

waive the inadmissibility of U Visa applicants.” L.D.G., 744 F.3d at 1030; 

Carcieri v. Salazar, 555 U.S. 379, 387, 129 S. Ct. 1058, 1063–64 (2009) (noting 

that courts must apply a statute according to its plain terms). In turn, an IJ has that 

authority as the Attorney General’s delegate. See 8 C.F.R. § 1003.10(a).

 7 When evaluating whether to grant a waiver of inadmissibility, courts must weigh the (1) “risk 

of harm to society if the applicant is admitted,” (2) “seriousness of the applicant’s prior 

immigration law, or criminal law, violations, if any,” and (3) “nature of the applicant’s reasons 

for wishing to enter the United States.” Matter of Hranka, 16 I. & N. Dec. 491, 492 (BIA 1978). 

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Keeping in mind that “when two statutes are capable of co-existence, it is 

the duty of the courts, absent a clearly expressed constitutional intention to the 

contrary, to regard each as effective,” Morton v. Mancari, 417 U.S. 535, 551, 94 S. 

Ct. 2474, 2483 (1974), we further agree with the Seventh Circuit’s holding that 

subsection (d)(14) coexists with subsection (d)(3). See L.D.G., 744 F.3d at 1030. 

The mere 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 . . . . Far from 

repealing section 1182(d)(3)(A), the newer [§ 1182(d)(14)] was a 

context-specific enhancement.

Id. at 1030–31.8

The BIA did not address or analyze the plain language of § 1182(d)(3) 

in making its ruling, which is the mandatory starting point in statutory 

interpretation. See Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438, 119 

S. Ct. 755, 760 (1999) (explaining that the analysis begins with the statute’s 

language “[a]nd where the statutory language provides a clear answer, it 

 8 Having adopted the Seventh Circuit’s finding that the plain language of section 1182(d)(3)(A) 

controls, we decline the Attorney General’s invitation to treat Matter of Khan, 26 I. & N. Dec. 

797 (BIA 2016), as binding. We acknowledge that the BIA’s opinion in Khan and the Third 

Circuit’s opinion in Sunday v. Atty. Gen., 832 F.3d 211 (3d Cir. 2016) are contrary to our 

holding. However, we find Khan and Sunday unpersuasive for the reasons set forth in BaezSanchez v. Sessions, 872 F.3d 854 (7th Cir. 2017). In Baez-Sanchez, the Seventh Circuit decided 

not to follow Khan and Sunday because those cases did not identify any regulation that limits the 

IJs’ authority to “act as the Attorney General’s delegates in the cases that come before them” set 

out in 8 C.F.R. § 1003.10(a). 872 F.3d at 855–56. We agree with that holding. 

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ends there as well.”). Rather, it concluded that because USCIS has sole 

jurisdiction over U visas, and because in its view there is no regulation that 

supports concurrent waiver of inadmissibility jurisdiction of IJs, IJs cannot 

have concurrent jurisdiction. But as we explained, the plain language of 

§ 1182(d)(3) gives IJs authority to grant waivers of inadmissibility. 

Therefore, the BIA’s conclusion that the IJs do not have authority to grant 

waivers of inadmissibility cannot stand. 

IV.

Accordingly, we grant Meridor’s petition for review of the BIA’s final 

removal order, vacate the order, and remand for further proceedings. On remand, 

the BIA must reconsider Meridor’s final order of removal. It should (1) take into 

account the fact that the IJ did have jurisdiction to grant Meridor a waiver of 

inadmissibility; (2) she exercised her discretion to do so; and (3) the proper 

standard of review for the IJ’s factual findings is clear error. 

PETITION GRANTED. VACATED AND REMANDED. 

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