C ite as 26 I&N Dec. 79 7 (BIA 2016 ) Interim Decision # 38 70

797 

### Matter of Safraz KHAN

, Respondent

Decided September 8 , 2016

U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration A ppeals

Immigration Judge s do not have authority to adjudicate a request for a waiver of inadmissibility under section 212(d)(3)(A)(ii) of the Immigration and Nationality Act,

8 U.S.C. § 1182(d)(3)(A)(ii) (2012) , by a petitioner for U nonimmigrant status

.

FOR RESPONDENT: Antonio Bugge , Esquire, Fort Lauderdale, Florida

F OR THE DEPARTMENT OF HOMELAND SECURITY: Lois B. Agronick

, Associate Legal Advisor

BEFORE: Board Panel: MALPHRUS , MULLANE, and CREPPY, Board Member s.

CREPPY

, Board Member :

In a decision dated February 19, 2015, an Immigration Judge concluded that she had concurrent jurisdiction to adjudicate the respondent’s request for a waiver of inadmissibility under section 212(d)(3)(A)(ii) of the Immigration and Nationality Act, 8 U.S.C . § 1182(d)(3)(A)(ii) (2012) , but

she denied the waiver as a matter of discretion and ordered the respondent

removed from the United States . The respondent has appealed from th at

decision. The Department of Homeland Security (“DHS”) opposes the appeal and argues that the Immigration Judge erred in assuming jurisdiction over the respondent’s waiver request. The appeal will be dismissed. 1



### I

. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of Guyana who was admitted to the United States as a lawful permanent resident on May 25, 1992. On March 11, 2008, he was convicted of attempted lewd or lascivious battery

, computer pornography and child exploitation

, and transmission of harmful

material to a minor in viol ation of section s 800.04(4)(a)

, 847.0135(3), and 847.0138(2) of the Fl orid a Stat utes

, respectively . The respondent was

1 We appreciate the parties’ submission of supplemental briefs in support of their positions on appeal.C ite as 26 I&N Dec. 79 7 (BIA 2016 ) Interim Decision # 38 70

798 subsequently placed in to removal proceedings by a notice to appear charg ing him with being removabl e under section 237(a)(2)( A)(iii) of the
Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2012) , as an alien convicted of sexual

abuse of a minor

, which is an aggravated felony u n der section 101(a)(43)(A) of the Act

, 8 U.S.C. § 1101(a)( 43 )( A ) (2012)

. T he Immigration Judge sustained the charge of removab i l ity

. The respondent did not request relief from removal before the Immigration Judge . I nstead

, he sought a waiver in conjunction with his visa petition for

U nonimmigrant status under section 101(a)(15)(U) of the Act from the United States Citizenship and Immigration Services (“USCIS”)

. He fil ed a Petition for U Nonimmigrant Status (Form I

- 918) on October 19, 2012, and an Application for Advance Permission to Enter as a Nonimmigrant (Form

I

- 192) on November 19, 2012. On June 4, 2013, the Immigration Judge administratively closed the case pend ing adjudication of the respondent’s petition for U nonimmigrant status. The DHS filed an interlocutory appeal. On August 14, 2013, w e declined to exercise jurisdiction over the interlocutory appeal and returned the record to the Immigration Court

without further action. T he USCIS denied both the visa petition and the waiver request on December 17, 2014

. The respondent’s case was

subs equently recalendared, and he requested a waiver of inadmissibility under section 212(d)(3)(A)(ii) of the Act from the Immigration Judge

. The Immigration Judge acknowledg ed that the USCIS had exclusive jurisdiction over petitions for U nonimmigrant status but found that she had concurrent jurisdiction to adjudicate the respondent’ s request for a section 212(d)(3)(A)(ii) waiver

. In reaching that conclusion, t he Immigration

J udge relied on Matter of Sanchez Sosa , 25 I&N Dec. 807 (BIA 2012), and

L.D.G. v. Holder , 744 F.3d 1022 (7th Cir. 2014), a decision o f the United States Court of Appeals for the Seventh Circuit. 2 S h e then applied the analytical framework set forth in Matte r of Hranka , 16 I&N Dec. 491 (BIA 1978), and concluded that the respondent did not satisfy his burden of establishing that he merited a grant of the waiver in the exercise of

discretion.

2 In Matter of Sanchez Sosa

, 25 I&N Dec. at 811

, w e stated that “[t] he USCIS has exclusive jurisdiction over U visa petitions and applications for adjustment of status under section 245(m) of the Act [

, 8 U .S.C. § 1255(m) (20 06 )] .” The Immigration Judg e interpreted this statement as implicitly permitting an Immigration Judge to have concurrent jurisdiction over a s ection 212(d)(3)(A) waiver, which she considered to be

separate from the petition and the adjustment application. We disagr ee that Matter of

Sanchez Sosa supports such a conclusion

, because w e did not specifically address that

issue

.C ite as 26 I&N Dec. 79 7 (BIA 2016 ) Interim Decision # 38 70

799 

### II. ISSUE

The question before us is whether an Immigration Judge has authority to adjudicate a request for a waiver of inadmissibility under section 212(d)(3)(A)(ii) of the Act by a petition er for U nonimmigrant status

. 3



### III. ANALYSIS

A. USCIS J urisdiction Over Petitions for U N onimmigrant S tatus

and R equests for Waivers of I nadmissibility

T he petitioning and application procedures for U visas under the Act and the regulations reflect that t he USCIS has exclusive jurisdiction over petitions for U nonimmigrant status under section 101(a)(15)(U) of the Act

. S ection 214(p) of the Act, 8 U.S.C. § 1184(p) (2012) ; 8 C.F.R.
§ 214.14(c)(1) (2016) ; see also Matter of G

- K

- , 26 I&N Dec. 88, 93 (BIA 2013); Matter of Sanchez Sosa , 25 I&N Dec. at 811 . To establish prima facie eligibility for U nonimmigrant status, the petitioner must

present, inter alia , a law enforcement certification from an appropriate law enforcement authority and

, if necessary, a n application for a waiver of inadmissibility, as part of the evidentiary submission to the USCIS. See Matter of Sanchez Sosa

, 25 I&N Dec. at 811; 8 C.F.R. §§ 214.14(b), (c)(2).

Aliens seek ing to apply for U nonimmigrant status, including those in removal proceedings, must file a p etition on a Form I

- 918 directly with the
USCIS. 8 C.F.R. § 214.14(c)(1). Only petitioners who are admissible to the United States or who have

been granted a waiver of inadmissibility by the USCIS are eligible for

3 Section 2 12(d)(3)(A) of the Act provides in pertinent part as follows :

Except as provided in this subsection, an alien

. . . (ii) who is inadmissible under section (a) (other than paragraphs (3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C) and clauses (i) and (ii) of paragraph (3)(E) of such subsection), but who is in possession of appropriate documents or is granted a

waiver thereof and is se eking admission, may be admitted into the United States temporarily as a nonimmigrant in the discretion of the Attorney General. The Attorney General shall prescribe conditions, including exaction of such bonds as may be necessary, to control and regulate the admission and return of inadmissible aliens applying for temporary admission under this paragraph.

Th is waiver was previously at f ormer section 212(d)(3)(B) of the Act, 8 U.S.C.
§ 1182(d)(3)(B) (2000), until it was redesignated by section 104 of the REAL ID Act of
2005, Division B of Pub. L. No. 109

- 13, 119 Stat. 302, 309.C ite as 26 I&N Dec. 79 7 (BIA 2016 ) Interim Decision # 38 70

800 U nonimmigrant status. See section 212(d)(14) of the Act ; 4 8 C.F.R.
§§ 212.17(a), 214.1(a)(3)(i), 214.14(c)(2)(iv) (2016) . Congress enacted section 212(d)(14) of the Act to provide a waiver of inadmissibility specifically for petitioners for U nonimmigrant status

. New Classification

for Victims of Criminal Activity; Eligibility for “U” Nonimmigrant Status, 72 Fed. Reg. 53,014, 5 3 ,021 (Sept. 17, 2007) (Supplementary Information). Under this provision, only the Secretary of Homeland Security has the discretion to waive grounds of inadmissibility for such peti tioners. In order to apply for such a waiver, a petitioner must file a Form I

- 192 as part of the evidentiary package submitted to the USCIS. 8 C.F.R.
§§ 212.17(a), 214.14(c)(2)(iv); see also Matter of Sanchez Sosa

, 25 I&N

Dec. at 811. A s the delegate of the Secretary of Homeland Security, t he

USCIS evaluates the petitioner’s application to determine whether it is in the public or national interest to waive inadmissibility in the exercise

of discretion. In cases involving violent or dangerous crimes or inadmissibility relating to national security issues, the USCIS may exercise its discretion to waive inadmissibility only i n extraordinary circumstances. 8 C.F.R. § 212.17(b)(2). The decision of the USCIS (or the Secretary of Homeland Security) is not appealable, but the petitioner is not precluded

from re

- filing a request for a waiver in appropriate cases. 8 C.F.R.
§ 212.17(b)(3).

B. L imited Authority of Immigration Judges T o A djudicate W aivers

o f I nadmissibility U nder S ection 212(d)(3)(A)(ii) of the Act

The waiver of inadmissibility under section 212(d)(3)(A) of the Act is a general waiver that authorizes the temporary admission of nonimmigrant aliens applying for advance permission to enter the United States in the discretion of the Attorney General. An alien who is seeking admission may apply for the waiver at a port of entry or a preclearance office designated by the United States Customs and Border Protection (“CBP”) pursuant to

4 Section 212(d)(14) of the Act provides as follows:

The Secretary o f Homeland Security shall determine whether a ground of inadmissibility exists with respect to a nonimmigrant described in section
101(a)( 15)(U) . The Secretary o f Homeland Security, in the Secretary o f Homeland Security ’s discretion, may waive the applica tion of subsection (a) (other than paragraph (3)(E)) in the case of a nonimmigrant described in section 101(a)(15)(U)

, if the Secretary o f Homeland Security considers it to be in the public or national

interest to do so.C ite as 26 I&N Dec. 79 7 (BIA 2016 ) Interim Decision # 38 70

801 section 212(d)(3)(A)(ii). 5 See Form I

- 192 : Application for Advance Permission to Enter as Nonimmigrant

, https://www.uscis.gov/i

- 192

. The respondent argues that since the Attorney General has jurisdiction

to grant a section 212(d)(3)(A)(ii) waiver, the Immigration Judges also implicitly have such authority with regard to U visas

. In support of this argument, h e relies on L.D.G.

, 744 F.3d at 10 30−31 , where the Seventh

Circuit conclu ded that Congress did not preclude petitioners for

U nonimmigrant status from requesting that the Attorney General grant a section 212(d)(3)(A)(ii) waiver, which h as generally been available to nonimmigrants before and after the enactment of section s 101(a)(15)(U)

and 212(d)(14) of the Act

. Consequently, the court held that Immigration Judges have jurisdiction to grant the waiver to a U visa applicant. Id. at

1031. However, it is not clear that Congress would have intended for

the Attorney General to have jurisdiction over these waivers to accord

U nonimmigrant status once it gave the DHS exclusive jurisdiction over

U visas. As discussed above, when Congress created the U nonimmigrant visa

, it

also enacted section 212(d)(14) of the Act , which provided a specific waiver of inadmissibility for petitioners for U nonimmigrant status, and this

waiver now falls within the exclusive jurisdiction of the DHS. The legislative intent as to the interplay between the waivers in section 212( d)(3)(A)(ii) and section 212(d)(14) is unclear. T he language of section 212(d)(3)(A)(ii) that refer s to the Attorney General currently provides a general waiver of inadmissibility for certain qualifying nonimmigrant

aliens

. However, even if the Attorney General has this waiver authority regarding U visas, we cannot conclude that such authority extends to Immigration Judges without taking the governing regulations and the authority of Immigration Judges into account

. The Attorney General has delegated lim ited authority to Immigration Judges to adjudicate a section 212(d)(3)(A)(ii) waiver request pursuant to

8 C.F.R. §§ 212.4(b), 235.2(d), 1212.4(b), and 1235.2(d) (2016) . These regulations provide that an application for the exercise of discretion may be

submitted on a Form I

- 192 to the district director in charge of the alien’s

arrival in the United States and that an alien may renew his or her application before the Immigration Judge in the context of a deferred inspection after the waiver has been deni ed at the port of entry. According

to 8 C.F.R. §§ 212.4(b) and 1212.4(b),

5 In addition, a n alien who is outside the United States may apply for a waiver at a United States consulate pursuant to section 212(d)(3)(A)( i ) of the Act.C ite as 26 I&N Dec. 79 7 (BIA 2016 ) Interim Decision # 38 70

802 I f the application is made at the time of the applicant’s arrival to the district director at a port of entry, the applicant shall establish that he was not aware of the ground of inadmissibility and that it could not have been ascertained by the exercise of reasonable diligence, and he shall be in possession of a passport and visa, if required, or have been granted a waiver thereof

. . . . If denied, the denial shall be without prejudice to renewal of the application in the course of proceedings before [ a n
I mmigration J udge]

. . . . 6

These regulations are consistent with 8 C.F.R. §§ 235.2(d) and 1235.2(d)

, which provide that “ [ r ] efusal of a district director . . . to grant an application for the benefits of . . . section 212(d)(3) . . . of the Act, shall be without prejudice to the renewal of such application or the authorizing of such admission by the immigration judge without addition al fee.” When viewed together, the regulations limit the Immigration Judge ’s authority to adjudicat e an inadmissible nonimmigrant’s request for a section 212(d)(3)(A)(ii) waiver to narrow and specific circumstances that are inapplicable to a petitioner fo r U nonimmigrant status

. Thus, the regulatory scheme for waivers sought by arriving aliens in the deferred inspection context is different from the regulatory scheme applicable for waivers sought by petitioners for U nonimmigrant status. While L.D.G. dis cussed many of the regulations relevant to the U visa, it did not addre ss 8 C.F.R.
§§ 235.2(d) and 1235.2(d). Thus, L.D.G. does not purport to invalidate or undermine these regulations or the regulatory scheme they out line

. B oth before and after Congress’ enactment of the U visa statutory provisions, we have held that the Immigration Judge’s authority to grant a section 212(d)(3)(A)(ii) waiver is limited to when an inadmissible nonimmigrant alien seeking admission at a port of entry has been deni ed a waiver and has been placed in exclusion or removal proceedings where a

waiver request has been renewed before the Immigration Judge. See Matter of Kazemi , 19 I&N Dec. 49, 52 (BIA 1984) (discussing the limited jurisdiction of Immigration Judge s and t he Board to consider a renewed

request for a waiver by an alien in exclusion proceedings following denial

of the waiver by the district director at a port of entry) ; see also Matter of Fueyo , 20 I&N Dec. 84, 86

− 87 (BIA 1989). Since a petitioner for

6 The regulations at 8 C.F.R. §§ 212.4(b) and 1212.4(b) are outdated because they are entitled “Applications under section 212(d)( 3)(B)” and make references to that former waiver provision and other sections of the Act that have been redesignat ed . However, the substance of the regulations make clear that they actually apply to the current waiver at section 212(d)(3)(A)(ii) of the Ac t. Further, the instructions for the Form I

- 192 state, inter alia, that the regulatory basis for the form is at 8 C.F.R. § 212.4(b). See generally

8 C.F.R. § 103.2(a)(1) (2016) (providing that every benefit request submitted to the DHS

must be executed and filed in accordance with the form instructions and that such instructions are incorporated into the relevant regulations).C ite as 26 I&N Dec. 79 7 (BIA 2016 ) Interim Decision # 38 70

803 U nonimmigrant status is physically in the United States and is therefore not subject to deferred inspection during which a CBP or designated immigration official may den y the waiver at a port of entry, it follows that Immigration Judges lack the authority to consider a request by a petitioner

for U nonimmigrant status for a waiver under section 212(d)(3)(A)(ii) of

the Act. Contrary to the Seventh Circuit’s interpretation, the powers and duties of Immigration Judges to conduct removal hearings under section 240 of
the Act, 8 U.S.C. § 1229a (2012) , and any other proceedings, is only that authority delegated to them by the Act and by the Attorney General through regulation. S ection 103(g) of the Act, 8 U.S.C. § 1103(g) (2012) ; see also section 101(b)( 4) of the Act (defining the term “Immigration Judge” as “an attorney whom the Attorney General appoints as an administrative judge

. . . [to] perform such duties as the Attorney General shall prescribe”) ; Matter of G

- K

- , 26 I&N Dec. at 93 (noting that the jurisdiction of the Board and the Immigration Judge is limited by statute and regulation to that which has been delegated by the Attorney General) ; Matter of Avetiysan , 25 I&N Dec. 688, 691 (BIA 2012) (“In conducting proceedings, an Immigration Judge exercises the powers and duties delegated by law and by the Attorney General of the United States through regulation.”); 8 C.F.R. § 1003.10 (2016)

. We conclude that t he regulations do not give Immigration Judge s authority to grant a wai ver of inadmissibility under section 212(d)(3)(A)(ii)

of the Act to a petitioner for U nonimmigrant status who is in the United

States

. W e find support for our conclusion in the Third Circuit’s recent precedent, which analyzed this issue and reached a con trary result from

L.D.G. Sina Sunday v. Att ’ y Gen

. of U

. S

. , No. 15

- 1232, 2016 WL 4073270,

at *3

- 5 (3d Cir. Aug. 1, 2016). There, the court concluded that an Immigration Judge’s authority to consider a section 212(d)( 3)(A)(ii) waiver was limited to only those instances where the alien first applied for admission to a district director prior to entry, and not to an alien who was

admitted into the United States and now seeks a waiver of inadmissibility from an Immigratio n Judge so that he can petition for a U visa.
Moreover, w e presume that when Congress enact ed section 212(d)(14)
of the Act, it was aware that a waiver of inadmissibility under section 212(d)(3)(A)(ii) was unavailable to a petitioner for U nonimmigrant sta tus

in the United States

. Congress therefore provided a much broader waiver

that (1) does not statutorily require a petitioner for U nonimmigrant status to be in possession of a valid entry document and (2) only requires that the petitioner not be otherwise inadmissible under section 212(a)(3)(E) of the

Act on the basis of Nazi persecution, genocide

, or the commission of tortuous acts or extrajudicial killings. Further, the language of sectionC ite as 26 I&N Dec. 79 7 (BIA 2016 ) Interim Decision # 38 70

804 212(d)(14) clearly provides that the Secretary of Home land Security has sole jurisdiction to adjudicate waivers of inadmissibility for petitioners for U nonimmigrant status. We are also not persuaded by the rationale in L.D.G.

, 744 F.3d at

1031

− 32

, that giv ing Immigration Judges the authority to grant a section 212(d)(3)(A)(ii) waiver to an applicant for U nonimmigrant status would promote efficiency in the administration of the immigration system. Immigration Judges only address matters falling within the scope of their jurisdiction to resolve contested issues in removal proceedings

— not

collateral matters. See Matter of Yauri , 25 I&N Dec. 103, 110 (BIA 2009) (“As a practical matter, Immigration Judges and the Board have limited and finite adjudicative and administrative resources

, and th o se resources a re best allocated to matters over which we do have jurisdiction.”) ; c f. Matter of Aceijas

- Quiroz , 26 I&N Dec. 294, 299 (BIA 2014) (declining to review legal issues underlying matters over which the DHS has sole and unreviewable discretion)

. Even if the Immigration Judge had granted the respondent’s section 212(d)(3)(A)(ii) waiver request

, which necessarily requires a determination of inadmissibility a s part of the ultimate exercise of discretion that is clearly assig ned to the USCIS

, that would not have allowed he r to resolve the respondent’s removability. Rather, the respondent would have been required to re

- file a petition for U nonimmigrant status with the USCIS and await its adjudication. This would not result in a harmonious statutory

scheme. See Matter of C

- T

- L

- , 25 I&N Dec. 341, 347 (BIA 2010) ( stating

that adopting two different standards would be unharmonious and asymmetrical) ( citing Food and Drug Admin. v. Brown & Williamson Tobacco Corp

. , 529 U.S. 120, 133 (2000)

, and Matter of Moncada , 24 I&N Dec. 62, 65 (BIA 2007)). Therefore, we disagree with the Seventh Circuit’s interpretation in L.D.G.

, 744 F.3d at 1030

− 31

, that section 212(d)(3)(A) of the Act permits Immigration Judges to waive the inadmissibility of U nonimmigrant visa applicants l ike the petitioner in that

case

. Upon review of L.D.G

. , we respectfully conclude that the totality of the Seventh Circuit’s analysis did not expressly determine that the language in section 212(d)( 3)(A)(ii) of the Act was unambiguous. We recognize that the Seventh Circuit stated that “we see that the plain language of section
[2 12(d)(3)(A) ] grants to the Attorney General authority to waive the inadmissibility of ‘an alien’ applying for a temporary nonimmigrant visa, ” and absent any limitation, it “permits the Attorney General to waive the inadmissibility of U Visa applicant s like L.D.G.” L.D.G.

, 744 F.3d at 1030. However, the court went on to discuss the interplay between different waiver provisio ns and stated that the statutory scheme for considering aC ite as 26 I&N Dec. 79 7 (BIA 2016 ) Interim Decision # 38 70

805 waiver of inadmissibility for a petitioner for U nonimmigrant status was

“ ambiguous. ” Id. at 1031. The Supreme Court has held that a circuit court must accord deference

under Chevron, U.S.A., Inc . v. Natural Resources Defense Council, Inc.

, 467 U.S. 837 (1984), to an agency’s interpretation of a statute, regardless of the circuit court’s contrary precedent, unless the prior court decision holds that the construction follows from the unambiguous terms of the statute and

thus leaves no room for agency discretion. Nat’l Cable & Telecomm s

. Ass’n v. Brand X Internet Serv s

. ( “ Brand X ” )

, 545 U.S. 967, 982

− 85 (2005); see also Holder v. Martinez Gutierrez , 132 S. Ct. 2011 , 2017−21 (2012); Matter of M

- H

- , 26 I&N Dec. 46, 49 (BIA 2012).

Based on the t otality of the court’s analysis, we conclude that the

Seventh Circuit did not expressly find the language of section 212(d)(3)(A) to be unambiguous

, which would leav e no room for agency discretion. See

Brand X , 545 U.S. at 982; Matter of M

- H

- , 26 I& N Dec. at 4 9

. Accordingly, we will respectfully apply our ruling in this decision to cases nationwide, including cases arising in the Seventh Circuit, in order to promote national uniformity in the interpretation of immigration law.



### IV. CONCLUSION

We conclude that Immigration Judges do not have authority to adjudicate a request for a waiver of inadmissibility under section 212(d)(3)(A)(ii) of the Act by a petition er for U nonimmigrant status

. Therefore the Immigration Judge erred in adjudicat ing the respondent’s waiver request. Accordingly, the respondent’s appeal will be dismissed

. 

### ORDER: The appeal is dismissed

.