United States Court of Appeals

For the Eighth Circuit 

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No. 20-2200

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Claudia Gonzales Quecheluno, Betsaida Greys Ramirez Gonzales, and Dulce Dana 

Ramirez Gonzales

lllllllllllllllllllllPetitioners 

v.

Merrick B. Garland, Attorney General of the United States

lllllllllllllllllllll

 Respondent

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Petition for Review of an Order of the Board of Immigration Appeals

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Submitted: June 16, 2021

Filed: August 12, 2021

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Before LOKEN, KELLY, and ERICKSON, Circuit Judges.

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KELLY, Circuit Judge.

Mexican nationals Claudia Gonzalez Quechuleno and her daughters, Betsaida

Greys Ramirez Gonzalez and Dulce Dana Ramirez Gonzalez, petition for review of

a May 2020 order from the Board of Immigration Appeals (BIA) denying their 
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motion to reopen and remand.

1

 Upon careful review of the record and the briefs, we 

grant the petition. 

I. 

Petitioners applied for admission into the United States at the San Ysidro Port 

of Entry on December 9, 2015, and Customs and Border Protection granted them 

parole soon after. The Department of Homeland Security (DHS) subsequently 

served Petitioners with Notices to Appear, charging them with inadmissibility under 

8 U.S.C. § 1182(a)(7)(A)(i)(I), and terminated their parole status. Petitioners 

conceded the charge of inadmissibility and applied for asylum, withholding of 

removal, and protection under the Convention Against Torture. On June 1, 2017, 

after a merits hearing, an immigration judge (IJ) denied Petitioners’ applications for 

relief and ordered them removed to Mexico. Later that month, Petitioners applied 

for U nonimmigrant status (U visa) with U.S. Citizenship and Immigration Services 

(USCIS). See 8 U.S.C. § 1101(a)(15)(U); 8 C.F.R. § 214.14. Petitioners then timely 

appealed the IJ’s decision to the BIA. While the appeal was pending, Petitioners

filed a motion asking the BIA to administratively close their case to await the 

outcome of their U visa application.2 

In September 2018, the BIA dismissed Petitioners’ appeal and denied their

motion to administratively close the proceedings. Citing an intervening decision by 

the Attorney General, see Matter of Castro-Tum, 27 I&N Dec. 271, 281, 292 (AG 

1

Quechuleno’s daughters are included as derivative beneficiaries on their 

mother’s applications for relief. Although the case caption lists their names as 

“Quecheluno” and “Gonzales,” the administrative record indicates the correct 

spellings are “Quechuleno” and “Gonzalez.” This opinion will therefore use the 

latter.

2

Administrative closure is “a docket management tool . . . used to temporarily 

pause removal proceedings.” Matter of W-Y-U-, 27 I&N Dec. 17, 18 (BIA 2017); 

see also Garcia-DeLeon v. Garland, 999 F.3d 986, 989 (6th Cir. 2021) (“For at least 

three decades, [IJs] and the BIA regularly administratively closed cases.”).
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2018), overruled by Matter of Cruz-Valdez, 28 I&N Dec. 326, 326 (AG 2021), the 

BIA explained that it “lack[ed] authority to grant administrative closure in most 

cases, including this situation.”3

 Admin. R. at 103. Petitioners then filed a motion

relying on Matter of Sanchez Sosa, 25 I&N Dec. 807 (BIA 2012), requesting that 

the BIA reopen the case and remand it to the IJ so Petitioners could seek a 

continuance pending adjudication of their U visa application. The BIA denied that

motion in May 2020, and this petition for review followed. 

II. 

“We review both the denial of a motion to remand and the denial of a motion 

to reopen for abuse of discretion.” Caballero-Martinez v. Barr, 920 F.3d 543, 549 

(8th Cir. 2019) (quoting Clifton v. Holder, 598 F.3d 486, 490 (8th Cir. 2010)). “The 

BIA abuses its discretion if its decision is without rational explanation, departs from 

established policies, invidiously discriminates against a particular race or group, or 

where the agency fails to consider all factors presented by the [noncitizen] or distorts 

important aspects of the claim.” Id. (quoting Clifton, 598 F.3d at 490-91). “While 

it is well established that the BIA has broad discretion to grant or deny a motion to 

reopen, if it does not articulate a reasoned basis for rejecting the motion or fails to 

consider all the aspects of the petitioner’s claim, it has abused its discretion.” 

Habchy v. Filip, 552 F.3d 911, 915 (8th Cir. 2009). 

3

“Because Castro-Tum departed from long-standing practice” by 

“conclud[ing] that the immigration courts’ use of the tool of administrative closure 

was not authorized,” the Attorney General recently “overrule[d] that opinion in its 

entirety” and instructed IJs and the BIA to “apply the standard for administrative 

closure set out in [Matter of Avetisyan, 25 I &N Dec. 688 (BIA 2012)] and [Matter 

of W-Y-U, 27 I&N Dec. 17 (BIA 2017)].” Matter of Cruz-Valdez, 28 I&N Dec. at 

326, 329. 
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III. 

As the BIA acknowledged, Petitioners’ motion to reopen and remand sought 

a continuance pending the adjudication of their U visa application. See Admin. R. 

at 3-4. In Matter of Sanchez Sosa, the BIA “articulate[d] the factors that an [IJ] and 

the [BIA] should consider in determining whether a[] [noncitizen] has established 

good cause to continue a case involving a U nonimmigrant visa petition.” 25 I&N 

Dec. at 807. These factors are: (1) the DHS’s response to the motion to continue; 

(2) “whether the underlying visa petition is prima facie approvable”; and (3) the 

reasons given for the continuance and other procedural considerations. CaballeroMartinez, 920 F.3d at 549 (cleaned up). Here, the government has conceded 

Petitioners’ prima facie eligibility for U visa status as well as their due diligence in 

seeking it. See Admin. R. at 12, 27-28. 

 We explained in Caballero-Martinez that the Sanchez Sosa factors “control[]” 

where—as here—the petitioner (1) applied for a U visa while appealing a final order

of removal to the BIA and (2) subsequently “request[ed] remand for a continuance

from the BIA rather than a continuance directly from the IJ.” 920 F.3d at 545, 550. 

Accordingly, the BIA in this case had the authority either to apply the Sanchez Sosa

factors itself or to remand to the IJ to determine in the first instance whether a 

continuance was warranted. See Sanchez Sosa, 25 I&N Dec. at 807; cf. Corea v. 

Garland, — F. App’x —, 2021 WL 2774260, at *6 (6th Cir. July 2, 2021) 

(considering whether “the BIA abused its discretion by denying [the petitioner’s] 

request for a continuance or for a remand to the IJ for further consideration of a 

continuance”). It did neither. The BIA explicitly referenced the Sanchez Sosa

factors but did not apply them. And despite asking the parties for supplemental 

briefing on the application of Caballero-Martinez to this case, the BIA asserted 

without further explanation that Caballero-Martinez “d[id] not require reopening.” 

Admin. R. at 4. 

Instead, in denying Petitioners’ motion, the BIA noted that “USCIS has 

exclusive jurisdiction over the adjudication of . . . U visa petitions.” Id. But both 
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the IJ and the BIA “may grant continuances on the basis of pending U visa petitions 

even though they do not have jurisdiction over U visa petitions.” CaballeroMartinez, 920 F.3d at 549; see id. at 550. Thus, “to the extent the BIA declined to 

remand [Petitioners’] case due to its lack of jurisdiction over [their] U visa 

application, it erred.” Id. at 550. The BIA also noted that “[b]ecause of the 

numerical cap, the DHS estimates that it may be 5 years or more before [Petitioners’] 

U visa petition is adjudicated.” Admin. R. at 4. Sanchez Sosa explicitly provides, 

however, that “[i]f the [noncitizen] shows that he has filed a completed application 

before the USCIS . . . and the petition appears to meet the necessary criteria to be 

granted, then any delay not attributable to the [noncitizen] ‘augurs in favor of a 

continuance.’” 25 I&N Dec. at 814 (emphasis added) (quoting Matter of Hashmi, 

24 I&N Dec. 785, 793 (BIA 2009)). The U visa backlog is not a new phenomenon, 

and the BIA has on numerous occasions remanded cases to the immigration court 

“for consideration of whether proceedings should be continued pending a decision 

by USCIS on . . .[a U visa] petition,” In re Ramirez-Rios, 2016 WL 1084499, at *1 

(BIA Feb. 29, 2016); see also, e.g., In re Carillo, 2018 WL 1897754, at *1 (BIA 

Feb. 12, 2018); In re Castaneda Galindo, 2017 WL 1951525, at *1 (BIA Apr. 10, 

2017); In re Rosales de la Cruz, 2016 WL 946691, at *1 (BIA Feb. 18, 2016).

4

 Thus, 

“the backlog and slow processing time for U visas do not suffice, under the [BIA’s] 

own rules, to justify the denial of a continuance.”5

 Guerra Rocha v. Barr, 951 F.3d 

4

The BIA’s longstanding practice of reopening proceedings and remanding to 

the IJ for consideration of whether continuance is warranted when a noncitizen files 

a U visa petition during the pendency of their appeal also undercuts the BIA’s 

criticism in this case that Petitioners’ “motion . . . does not present any new facts.” 

Admin. R. at 4; cf. Osei v. I.N.S., 305 F.3d 1205, 1210 (10th Cir. 2002) (concluding 

that BIA abused its discretion when it departed from its prior practice of 

“evaluat[ing] motions to reopen exclusively on the factors set out in [established 

precedent]” without reasoned explanation). In any event, Petitioners did present a 

new fact because their U visa application occurred after the immigration court had 

already issued its decision. See 8 C.F.R. §§ 1003.2(c)(1), 1003.1(d)(iv)(A). 

5

The BIA also noted that Petitioners have already been granted an 

administrative stay of removal. See Admin. R. at 4. But regardless of whether 

Petitioners have been granted such a stay—which is within the discretion of 
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848, 854 (7th Cir. 2020); see also Malilia v. Holder, 632 F.3d 598, 606 (9th Cir. 

2011) (“[D]elays in the USCIS approval process are no reason to deny an otherwise 

reasonable continuance request.”). 

In sum, we conclude that the BIA abused its discretion in two respects: it 

departed from established policy when it failed either to apply the Sanchez Sosa

factors or to remand to allow the IJ do so, and it failed to provide a rational 

explanation for its decision, including its treatment of this court’s binding precedent 

in Caballero-Martinez. See Caballero-Martinez, 920 F.3d at 549 (noting that the 

BIA “established a policy” when it set out the factors in Sanchez Sosa); Clifton, 598 

F.3d at 494 (finding that the BIA abused its discretion where its “rationale for 

rejecting the motion to remand . . . was not relevant to the agency’s then established 

analysis” of such motions); see also Guerra Rocha, 951 F.3d at 853; Benitez v. 

Wilkinson, 987 F.3d 46, 50-51, 53 (1st Cir. 2021) (holding that the BIA “must follow 

the Sanchez Sosa framework, or explain its reasons for applying a different 

standard” where the petitioner files for a U visa while appealing a final order of a 

removal and then asks the BIA to reopen and remand).

IV. 

We grant the petition for review, vacate the BIA’s May 2020 order, and 

remand for proceedings consistent with this opinion. 

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Immigration and Customs Enforcement and must be periodically renewed, see 8 

C.F.R. §§ 214.14(c)(1)(ii), 241.6(a), 1241.6(a)—they are entitled to a “rebuttable 

presumption . . . warrant[ing] a favorable exercise of discretion for a continuance” 

of removal proceedings because the government has conceded that they filed “a 

prima facia approvable” U visa application. Sanchez Sosa, 25 I&N Dec. at 815; cf. 

Guerra Rocha v. Barr, 951 F.3d 848, 853 (7th Cir. 2020) (criticizing the BIA for 

failing to “even mention the likelihood that [the petitioner’s] application would be 

granted”).