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Matter of Safraz KHAN, Respondent

Decided September 8, 2016

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

Immigration Judges 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 

FOR THE DEPARTMENT OF HOMELAND SECURITY: Lois B. Agronick, Associate 

Legal Advisor 

BEFORE: Board Panel: MALPHRUS, MULLANE, and CREPPY, Board Members.

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 that

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 violation of sections 800.04(4)(a), 847.0135(3), and 

847.0138(2) of the Florida Statutes, respectively. The respondent was 

 1 We appreciate the parties’ submission of supplemental briefs in support of their 

positions on appeal.
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subsequently placed into removal proceedings by a notice to appear 

charging him with being removable 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 under section 

101(a)(43)(A) of the Act, 8 U.S.C. § 1101(a)(43)(A) (2012). 

The Immigration Judge sustained the charge of removability. The 

respondent did not request relief from removal before the Immigration 

Judge. Instead, 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 filed 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 pending adjudication of the respondent’s

petition for U nonimmigrant status. The DHS filed an interlocutory appeal. 

On August 14, 2013, we declined to exercise jurisdiction over the 

interlocutory appeal and returned the record to the Immigration Court 

without further action. The USCIS denied both the visa petition and the 

waiver request on December 17, 2014. The respondent’s case was 

subsequently 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 acknowledged 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, the Immigration 

Judge 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 of the United 

States Court of Appeals for the Seventh Circuit. 2

 She then applied the 

analytical framework set forth in Matter 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, we 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) (2006)].” The Immigration Judge 

interpreted this statement as implicitly permitting an Immigration Judge to have 

concurrent jurisdiction over a section 212(d)(3)(A) waiver, which she considered to be 

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

Sanchez Sosa supports such a conclusion, because we did not specifically address that 

issue. 
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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 petitioner for U nonimmigrant status.

3

 

III. ANALYSIS

A. USCIS Jurisdiction Over Petitions for U Nonimmigrant Status

and Requests for Waivers of Inadmissibility

The petitioning and application procedures for U visas under the Act 

and the regulations reflect that the USCIS has exclusive jurisdiction over 

petitions for U nonimmigrant status under section 101(a)(15)(U) of the Act. 

Section 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, an 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 seeking to apply for U nonimmigrant status, including those in 

removal proceedings, must file a petition 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 212(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 seeking 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.

This waiver was previously at former 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. 
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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, 53,021 (Sept. 17, 2007) (Supplementary Information). 

Under this provision, only the Secretary of Homeland Security has the 

discretion to waive grounds of inadmissibility for such petitioners. 

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. As the delegate of the Secretary of Homeland Security, the 

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 in 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. Limited Authority of Immigration Judges To Adjudicate Waivers

 of Inadmissibility Under Section 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 of Homeland Security shall determine whether a ground of 

inadmissibility exists with respect to a nonimmigrant described in section 

101(a)(15)(U). The Secretary of Homeland Security, in the Secretary of Homeland 

Security’s discretion, may waive the application of subsection (a) (other than 

paragraph (3)(E)) in the case of a nonimmigrant described in section 101(a)(15)(U),

if the Secretary of Homeland Security considers it to be in the public or national 

interest to do so.
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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, he relies on L.D.G., 744 F.3d at 1030−31, where the Seventh 

Circuit concluded 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 has generally been available to 

nonimmigrants before and after the enactment of sections 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. The language of section 

212(d)(3)(A)(ii) that refers 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 limited 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 denied at the port of entry. According 

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

 5 In addition, an 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.
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If 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 [an

Immigration Judge] . . . .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 additional fee.” When 

viewed together, the regulations limit the Immigration Judge’s authority to 

adjudicate 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 for 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. discussed 

many of the regulations relevant to the U visa, it did not address 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 outline.

Both 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 denied 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 Judges and the 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 redesignated. 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 Act. 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).
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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 deny 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. Section 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 the regulations do not give Immigration Judges

authority to grant a waiver 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. We find support for our conclusion in the Third Circuit’s recent 

precedent, which analyzed this issue and reached a contrary 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 Immigration Judge so that he can petition for a U visa.

Moreover, we presume that when Congress enacted 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 status 

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 section 
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212(d)(14) clearly provides that the Secretary of Homeland 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 giving 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 those resources are 

best allocated to matters over which we do have jurisdiction.”); cf. 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 as part of the ultimate exercise of discretion that is clearly 

assigned to the USCIS, that would not have allowed her 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 like 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 

[212(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 applicants like L.D.G.” L.D.G., 744 F.3d at 1030. 

However, the court went on to discuss the interplay between different 

waiver provisions and stated that the statutory scheme for considering a 
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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 & Telecomms. 

Ass’n v. Brand X Internet Servs. (“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 totality 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 leave no room for agency discretion. See 

Brand X, 545 U.S. at 982; Matter of M-H-, 26 I&N Dec. at 49. 

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 petitioner for U nonimmigrant status. 

Therefore the Immigration Judge erred in adjudicating the respondent’s 

waiver request. Accordingly, the respondent’s appeal will be dismissed.

ORDER: The appeal is dismissed.