Interim Decision #2888

MATTER OF FRIGON
In Visa Petition Proceedings

Hoy -N- 10770

Decided by Commissioner September 17, 1981
(1) Section 101(aX15)(11Xi) of the Immigration and Nationality Ad, 8 U.S.C. 1101(aR15)(110,
defines a nonimmigrant alien trainee as an alien having a residence in a foreign country
which he has no intention of abandoning and who is coming temporarily to the United
States as a trainee, other than to receive graduate medical education or training.
(2) 8 C.F.R. 214.2(h)(4) provides that a trainee shall not be permitted to engage in
productive employment if such employment will displace a United States resident and,
while not prescribing specific requirements, lists a number of informational factors which
a petitioner must furnish and which a Service District Director must consider.
(3) Other criteria for qualifying for
nonimmigrant visa classification: Existence of an
actual training program, Matter of Treasure Craft of California. 14 I&N Dec_ 199
(R.C. 1972); training program must not be for the purpose of recruiting and training
aliens for the staffing of United States Finns, Matter of Glencoe Press, 11 I&N Dee_ 764
(E.G. 1966); training must be purposeful and not just incidental to productive employment,
Matter of Sasano, 11 ItiN Dec. 363 (R.C. 1965); and, repetition, review, and practical
application of skills alone do not constitute a training program, Matter of Masauyama,
1&N Dec. 157 (Actg. R.C. 1965).
ON BEHALF OF PETITIONER:

Harry Gee,. Esquire
2308 First City National Bank Building
Houston, Texas 77992

The application is before the Commissioner on certification from the
Regional Commissioner pursuant to 8 C.F.R. 103.4. The petition vies

approved on January 16, 1981 by the District Director. On February 5,
1981, the District Director rendered a new decision approving the petition based upon his own motion and certified the decision to the Regional
Commissioner. In a decision dated March 5, 1981, the Regional Commissioner denied the petition.
The petitioner is Resource Drilling, Inc., an oil well exploration and
drilling company based in Houston, Texas. The beneficiary is Denis
Frigon, a native and citizen of Canada, who is presently employed in the
occupation of "driller" by Arrowhead Drilling, Ltd., of Calgary, Alberta,
Canada, a

wholly owned subsidiary of the petitioner. According to the

petitioner (letter of Executive Vice President Paul L. Yount, dated
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January 6, 1981), "driller" is the occupational title of one of the five
levels of employees on most domestic land rigs. The position is at a level
of experience and training which is ranked higher than the occupational
titles 'Moorman" "Derriekman" and "motorman" but is subordinate to
the occupational titles of "rig manager" and "area manager." The petitioner claims that it generally tuts 5 years for a new employee to work
up to the position of driller and another 5 years to obtain the position of
rig manager.
The petitioner initially sought to classify the beneficiary as a trainee
under section 101(a)(15)(H)(i) of the Immigration and Nationality Act, 8
U.S.C. 1101(a)(15)(H)(i), based upon a proposed two year training
program. However, in its response to the District Director's motion to
reopen, the petitioner stated that the average length of time for the
training is "probably one year," although the length of time could vary.
The stated purpose of the training is to "cut in almost half," the period of
experience required to permit new employees to progress to the higher
occupational levels in the operation of land based oil rigs (letter of Paul
L. Yount, February 6, 1981). During the beneficiary's presence in the,
United States, he will be paid a salary of 4647.60 per week.
The training program consists of 75 hours of classroom training. The
remaining working hours are to be spent in supervised on-the-job
training. Classroom instruction will involve several topics of which 24
hours will be devoted to well control, 4 hours to blow out prevention, 8
hours in first aid, 8 hours in drilling fluids and downhole theory and the
remainder in a variety of other subjects. The unit on well control and
blowout prevention involves the use of a training device known as a
"blowout control simulator." The petitioner advises that few of these
devices are available, that Resource Drilling, Inc., will be only one of
two exclusively land drilling companies to own this equipment, that
their equipment is located in the United States, and that similar devices
are not available to Resource Drilling or its subsidiary, Arrowhead
Drilling, Ltd., in Canada.
Section 401(a)(15)(13)(i) of the Inunigration and Nationality Act, 8
U.S.C. 1101(A)(15)(H)(i), provides for the admission of a nonimmigrant
alien trainee as follows:
(H) an alien having a residence in a foreign country which he has no intention of
abandoning . . . . (i) who is coming temporarily to the United States as a trainee, other
than to receive graduate medical education or training . . . .

The regulatory discussion of the nonimmigrant alien trainee is contained in Title 8, Code of Federal Regulations, Part 214.2(h)(4). That
provision states that a trainee shall not be permitted to engage in productive employment if bitch employment will displace •a United States
resident- While not prescribing specific requirements, the regulatory
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provision lists a number of informational factors which a petitioner must
furnish and which a: Service District Director must consider. These
elements include a description of training including the proportion of
time devoted to productive employment, the number of hours devoted
to on-the-job training without supervision and in classroom instruction,
identification of the position for which the training will prepare the
beneficiary, an explanation of why the training cannot be obtained in the
alien's country, and why it is necessary for the alien to be trained in the

United States.
Other criteria for qualifying for 11-3 nonimmigrant visa classification
have been developed from both the regulatory language and from
administrative decisions interpreting law and regulation. These criteria
include the finding that there must exist an actual training program
(Matter of Treasure Craft of California, 14 I&N Dec. 190 (R.C. 1972)),
that the training program must not be for the purpose of recruiting and
training aliens for the staffing of United States firms (Matter of Glencoe
Press,11I&N Dee. 764 (R.C. 1966)), that the training must be purposeful and not just incidental to productive employment (Matter or Sasano,
11 I&N Dee. 363 (R.C. 1965)), and that repetition, review, and practical
application of skills alone do not constitute a training program (Matter of
Masauyama, 11 I&N Dec. 157 (Actg. R.C. 1965)).
In his decision of March 5, 1981, denying the visa petition, the Regional
Commissioner concluded: (1) that the description of classroom instruction for the most part involved care and maintenance of equipment

commonly used in the drilling industry and that the petitioner had failed
to establish that this and other training was not available in Canada,
(2) that the petitioner had failed to demonstrate that the well drilling
simulator which was portable could not be transported and used in
Canada and, (3) that because the beneficiary (and others on the rig)

would be involved in productive employment, the petitioner had failed
to satisfactorily demonstrate that United States workers would not be
displaced.
Upon review, I must agree with the Regional Commissioner that the
petitioner has not met his burden of proof. The number of classroom
boars constitutes approximately 5% of the training period if the program length is limited to one year The classroom curriculum includes
many subject areas such as basic first aid, engne care, proper care of
drill pipe, and other areas which a mid-level rig worker may either be
expected to have learned or which could be easily taught in Canada. The
petitioner has placed great emphasis on the argument that its well
control simulator cannot be relocated to Canada and that many of its
instructors are based in Houston and possess expert knowledge. Even
assuming these facts to be correct, this circumstance alone does not
warrant favorable action on the petition when 95% or more of the
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beneficiary's time will be on the rig at a salary of $847.60 per week. The
petitioner has access to the B 1 nonimmigrant visa classification to bring
employees to the United States to attend training courses of short duration if, classroom training is not available in Canada.
The central issue here is the effect or potential effect of productive
employment upon United States workers balanced against the petitioner's
need or purpose in training the alien beneficiary. The petitioner through
counsel states in a supplemental brief dated June 23, 1981, that the
purpose of the training is "more efficient performance of [the beneficiary's] duties and responsibilities so as to avoid accidents and down
time on the rigs" and to permit employees to "not only be able to perform their present duties better but . . . also get basic training for
advancement." These goals are of a general nature and would certainly
be found as ongoing goals for any responsible employer in structuring
his workplace. I remain unconvinced that these goals cannot be achieved
in Canicia or elsewhere. This conclusion is significant when weighed
against the potential injury to United States resident workers. In the
supplemental brief of June 23, 1981, counsel responded to a Service
inquiry as to the number of U.S. workers which will be employed on the
rigs as follows:
-

There will not be anv number of United States workers on the rigs during the training
period. Moreover, the workers will learn to work as a unit and the techniques and procedures in bhe operation of the rig require hands on experience.

This response reflects that the purpose of the beneficiary's proposed
presence in the United States is to obtain experience as opposed to
training. The response also reveals a situation where there are few or no
' United States workers regardless of skill level and where substantial
productive employment will occur. A conclusion that productive employment will occur is inescapable in view of the substantial expense inv aired

in erecting and operating a drilling rig. Training here must be viewed as
an incidental product pf the rig's operation over a one or two year
period.

The petitioner would argue that there is a general shortage of rig
workers in the United States, that United States labor is unavailable
and that displacement of United States workers is not at issue. Even
conceding a general labor shortage nationwide, local employment conditions may vary considerably. Also, the petitioner's intention to have rig
crews composed wholly or primarily of alien workers potentially threatens employment access for beginning United States workers at entry
levels or promotion for United States oil rig workers seeking advancement.
In view of these potential effects and the high percentage of "on-thejob" presence of the beneficiary, it is concluded that the petitioner has
not met his burden establishing entitlement to the classification sought.
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The Regional Commissioner's decision of March 5, 1981 is consistent
with .both regulations and the precedent decisions discussed above. The
petitioner still has access to the B-1 nonimmigrant classification tip allow
the employees of its Canadian subsidiary to benefit from classroom
instruction of short duration. The use of this alternative classification
represents a reasonable and balanced means for the petitioner to meet
his needs while still protecting the interests of United States resident
workers. The H-3 classification is not an appropriate vehicle to assist
United States companies to meet. their needs for labor or to provide
training and experience to foreign workers which are incidental to productive employment.
ORDER: Petition denied..

168


MATTER OF ZANG
In Visa Petition Proceedings
A-13759842

Decided by Acting District Director May 1, 1969
Since a visa. petition to classify an alien as a preference immigrant under
section 208 (a) (6). of the Immigration and Nationality Act, as amended,
must be supported by a certification by the Secretary of Labor, a visa petition to accord beneficiary sixth preference classification as a licensed
contractor or construction superintendent is denied in the absence of a
supporting labor certification notwithstanding beneficiary, as an investor,

might be exempt from the need for such certification (8 CFR 212.8(b) (4) )
if applying for immigrant status as a nonpreference immigrant.
ON BEHALF OF PETITIONER:

Ben Shapero, Esquire
1500 First National Building
Detroit, Michigan

The petition seeks to classify the beneficiary as a preference
immigrant under section 203 (a) (6) of the Immigration and Nationality Act, as amended, for employment as a licensed contractor or construction superintendent.
The beneficiary is a citizen of Israel, born February 21, 1944,
in Israel. He is an equal partner in a general contracting company and is primarily engaged in the field operation of this firm.
He intends to continue in his present calling.
Section 203 (a) (6) of the Act, as amended, provides for the
availability of visas to qualified immigrants who are capable of
performing specified skilled or unskilled labor, not of a temporary
or seasonal nature, for which a shortage of employable and willing persons exists in the United States.
Section 203 (a) (8) of the Act provides, inter alia, that no immigrant visa shall be issued to an immigrant with a preference
under section 202 (a) 05 of the Act until the consular officer is in
receipt of a determination made by the Secretary of Labor pursuant to the provisions of section 212 (a) (14) of the Act. The latter section also specifically makes sixth preference beneficiaries
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Interim Decision #1980
subject to such a determination by the Secretary of Labor. The
pertinent portion of the implementing regulation, 8 CFR
204.1 (d), provides that a petition for sixth preference classification must be accompanied by a certification under section
212(a) (14), supra.
On September 1, 1967, the beneficiary entered into an equal
partnership agreement for the establishment of an independeng
general contracting firm. His initial cash investment was one
thousand dollars, and his partner invested five thousand dollars.
Petitioner, through counsel, proposes that the partnership agreement was predicated on the basis of the beneficiary's knowledge
of the construction business and his licensure by the State of
Michigan as a building contractor; that his knowledge, experience
and licensure, coupled with the cash investment of one thousand
dollars, was at least quivalent to his petitioner's cash investment.
Two financial statements submitted in support of the petition reflect that the present assets of the petitioning company are
$27,985.82; an increase of more than one hundred per cent during
the period from January 1988 to November 1968. From the evidence presented, it is considered that the business is enjoying

some degree of success when considered by the standards normally applied to a small business venture.
Petitioner, at Service direction, applied to the Bureau of Employment Seeurity, Department of Labor, for the certification required by section 212 (a) (14) of the Act, as amended. Tinder date
of July 9, 1968, the Regional Administrator, Bureau of Employment Security, Chicago, Illinois, rejected the application for alien
employment certification on the following grounds:
We note in item 20 of ES 575B, that the alien will be paid a share of the
profits rather than a regular salary. It appears from the application that
Mr. Zang will be a partner in the business rather than an employee of the
firm. Persons who will be self-employed in the United States are not eligible
for alien employment certification. Consequently, we are returning your request without action by the Department of Labor.

The Regional Administrator's remarks are interpreted to indicate that the beneficiary is either being considered as an investor
and not required a certification under 8 CFR 212.8(b), or is considered to be within 8 CFR 212.8 (a) as an alien who will not engage in skilled or unskilled labor in the United States. Upon careful consideration of the cited regulations, it is apparent that the
beneficiary will in fact engage in skilled labor in the United
States and cannotte exempted certification as one who will not so
engage hhiself. Consideration is therefore directed to exemption

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from labor certification as an investor within 8 CFR 212.8(b) (4).
This regulation defines an investor as:
an alien who will engage in a commercial or agricultural enterprise in which
he had invested or is actively in the process of investing a substantial
amount of capital.

Webster's New World Dictionary, College Edition, defines capital in the pertinent parts as:
—wealth (money or property) owned or used in business by a person, corporation etc., an accumulated stock of such wealth; wealth, in whatever form,
used or capable of being used to produce more wealth; hence, any source of
profit or benefit; assets; resources, as energy and education are his only
capitaL

The same authority defines property when considered
connection with capital as:

in

the right to possess, use and dispose of something; ownership; as property
in land. a thing or things owned; holdings or possessions collectively; especially, a land or real estate owned.—any trait or attribute proper to a thing,
or, formerly, to a person.—something regarded as being possessed by, or at
the disposal, of a person or group of persons:

Applying these definitions to the instant case, it may be considered that the beneficiary has invested and is actively investing
capital, both in the form of cash and property, in a commercial
enterprise in which he is presently engaged and in which he intends to continue. Although the beneficiary has only invested
03,992.60 on the basis of the most recent financial statement, the nature of the construction industry is such that the
fixed assets of a particular company is not a true reflection of its
worth. No - large inventory of equipment and goods is required;
the physical plant need be neither complex nor extensive and with
the exception of heavy equipment, which can be leased or subcontracted, most of the employees will possess their own tools and
light equipment; therefore, though a small investment in the light
of heavy industry and the world of high finance, by small business standards this investment is considered to be substantial.
In considering whether a petition in behalf of the equal partner
of the petitioning firm is proper, we find that the Matter of M—,
8 I. & N. Dec. 24, holds the sole owner of the petitioning corporation to be properly considered the beneficiary of a preference immigrant visa petition. The language of 8 CFR 204.1(d) appears
consistent with this finding and provides for the filing of a visa
petition by a person, firm, or organization desiring and intending
to employ within the United States an alien entitled to classification as a preference immigrant under section 203 (a) (6) of the

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Act, as amended. There is no question that the petitioner when
considered as a firm or organization does desire and intend to employ the beneficiary in the stated capacity.
The beneficiary may be considered qualified as an investor
within the meaning of 8 CFR 212.8 (b) (4) and, as such, exempt
from the need for a labor certification if he were seeking admission as a nonpreference or special immigrant as defined in section
101 (a) (27) (A) of the Act or seeking adjustment of status to that
of a permanent resident as a nonpreference immigrant. However,
an alien investor who desires a sixth preference classification is
not seeking that classification in the capacity of an investor. Instead, he is seeking it in the capacity of an employee and, as previously stated, such classification may only be accorded, as a matter of law, if the petition is supported by a labor certification.
The Department of Labor has declined to issue the required certification on the basis that the alien will be self employed and not
eligible for consideration of alien employment certification. That
Department's decision is not, of course, subject to review by this
-

Service.

When this case was first considered, nonpreference visa numbers were unavailable and the alien beneficiary did not qualify as
a special immigrant. Since nonpreference visa numbers are presently available and the beneficiary may qualify as an investor,
consideration under this classification will be accorded to the beneficiary in the event that an appropriate application is filed.
In view of the requirement that a petition to classify a beneficiary as a preference immigrant under section 203 (a) (6) of the
Act must be supported by a certification by the Secretary of
Labor, notwithstanding the fact that the beneficiary might be exempt from the need for such certification if applying for immigrant status as a nonpreference or special immigrant, and the petitioner has not presented such a certification, the petition must
be denied for lack of a valid unexpired labor certification. Pursuant to 8 CFR 204.1(d) (4), no appeal shall lie from this decision.
It is ordered that the petition be denied for lack of a certification issued pursuant to section 212 (a) (14) of the Act by the
Secretary of Labor.

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Interim Decision #3974

Matter of L-N-Y-, Respondent
Decided January 22, 2020
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
In assessing whether to grant an alien’s request for a continuance regarding an
application for collateral relief, the alien’s prima facie eligibility for relief and whether it
will materially affect the outcome of proceedings are not dispositive, especially where
other factors—including the uncertainty as to when the relief will be approved or become
available—weigh against granting a continuance.
FOR RESPONDENT: Khalil J. Khalil, Esquire, Chicago, Illinois
BEFORE: Board Panel: MALPHRUS, Acting Chairman; CREPPY and CASSIDY, Board
Members.
MALPHRUS, Acting Chairman:

In a decision dated May 29, 2019, the Immigration Judge denied the
respondent’s request for a continuance to await the adjudication of his
U nonimmigrant visa petition, which is pending before the United States
Citizenship and Immigration Services (“USCIS”). The respondent has
appealed from this decision. During the pendency of his appeal, the
respondent submitted a motion to remand based on an informational letter he
received from the USCIS. The respondent’s appeal will be dismissed, and
his motion to remand will be denied.

I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Mexico who entered the United
States without being admitted or paroled in 1997. In 2018, he was convicted
of attempted possession of a controlled substance under Illinois law.
In January 2019, the Department of Homeland Security (“DHS”)
detained the respondent and placed him in removal proceedings, charging
him with removability under section 212(a)(6)(A)(i) of the Immigration and
Nationality Act, 8 U.S.C. § 1182(a)(6)(A)(i) (2018), as an alien present in
the United States without being admitted or paroled, and section
212(a)(2)(A)(i)(II) of the Act, as an alien convicted of a controlled substance
violation. The Immigration Judge found that the respondent was removable

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as charged under section 212(a)(6)(A)(i) but did not address his removability
under section 212(a)(2)(A)(i)(II) of the Act. 1
At a hearing conducted on March 14, 2019, the respondent informed the
Immigration Judge that he planned to file a petition for a U nonimmigrant
visa with the USCIS but was waiting for the relevant authorities to send
him the required law enforcement certification (“LEC”), certifying that he
was helpful to the investigation or prosecution of a criminal incident that
transpired in 2009. The Immigration Judge continued the proceedings to
allow the respondent to file an application for relief from removal and to
follow up on the status of the U visa petition.
At a hearing conducted on April 17, 2019, the respondent indicated
that he would not be pursuing an application for relief, but he noted that
he had received the LEC and mailed his petition for a U visa to the
USCIS on April 12, 2019. The respondent then applied for waivers of his
inadmissibility pursuant to, among other provisions, section 212(d)(3)(A)(ii)
of the Act. The Immigration Judge set the case for an individual hearing.
At an individual hearing conducted on May 29, 2019, the Immigration
Judge granted the respondent’s request for waivers of inadmissibility,
declined to further continue the proceedings to await the adjudication of his
U visa petition, and ordered him removed from the United States. 2
On appeal, the respondent challenges the Immigration Judge’s decision
to deny his request for a continuance to await the adjudication of his U visa
petition. While his appeal was pending, the respondent filed a motion to
remand the record to the Immigration Court based on an informational letter
he received from the USCIS dated September 19, 2019. In this letter, the
USCIS states that, while it appears that the respondent has established his
eligibility for U nonimmigrant status, the USCIS cannot grant his petition at
this time because the statutory cap for U visas has been reached for the fiscal
year, and the USCIS will not grant his petition until new visas become
available. The record reflects that the respondent remains detained.

1

The respondent’s removability is not at issue in this case.
Neither party has addressed the Immigration Judge’s decision to grant a waiver of
inadmissibility under 212(d)(3)(A)(ii) of the Act, nor have they raised any issues regarding
his authority to do so. Compare Baez-Sanchez v. Sessions, 872 F.3d 854, 855–56 (7th Cir.
2017), with Matter of Castro-Tum, 27 I&N Dec. 271, 284 n.6 (A.G. 2018). Thus, we need
not discuss these issues further.

2

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Interim Decision #3974

II. ANALYSIS
A. Motions for Continuances
An Immigration Judge may in his or her discretion grant a continuance
“for good cause shown.” 8 C.F.R. § 1003.29 (2019); see also Matter of
L-A-B-R-, 27 I&N Dec. 405, 405 (A.G. 2018). We have held that in assessing
whether there is “good cause” to grant a continuance to await the adjudication
of a U visa petition, Immigration Judges should consider several factors,
including: “(1) the DHS’s response to the motion; (2) whether the underlying
visa petition is prima facie approvable; and (3) the reason for the continuance
and other procedural factors.” Matter of Sanchez Sosa, 25 I&N Dec. 807,
813–14 (BIA 2012).
In Matter of L-A-B-R-, 27 I&N Dec. at 413, the Attorney General refined
this analytical framework, holding that Immigration Judges and this Board
must consider and balance “all relevant factors” in assessing whether there
is “good cause” to continue proceedings to accommodate a collateral matter
before another authority—such as a visa petition before the USCIS.
According to the Attorney General, the primary factors we should consider
in assessing whether to grant such a continuance are: “(1) the likelihood that
the alien will receive the collateral relief, and (2) whether the relief will
materially affect the outcome of the removal proceedings.” Id. However,
the Attorney General indicated that we must also consider relevant
“secondary factors,” which include, but are not limited to, “the [alien’s]
diligence in seeking collateral relief, [the] DHS’s position on the motion for
continuance, and concerns of administrative efficiency.” Id. at 415 (citing
Matter of Hashmi, 24 I&N Dec. 785, 790, 793 (BIA 2009)). 3 It is also
“appropriate to consider the length of the continuance requested, the number
of hearings held and continuances granted previously, and the timing of
the continuance motion.” Id. “As with any balancing analysis requiring
consideration of multiple factors, [an alien’s] strength on certain factors may
compensate for a weaker showing on others.” Id. at 417.
B. Respondent’s Request for Continuance
There is no dispute that the respondent is prima facie eligible for a U visa
and that a grant of his visa petition by the USCIS would materially affect the
outcome of his removal proceedings. However, in assessing whether to grant
an alien’s request for a continuance regarding an application for collateral
3

In Matter of Hashmi, 24 I&N Dec. at 790, we also stated that whether an alien’s
application for relief merits a favorable exercise of discretion is relevant to assessing a
continuance request. However, this factor is not at issue in this case.

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relief, these primary factors are not dispositive. This is especially so where,
as here, there are relevant secondary factors that weigh against continuing
the proceedings—in particular, the respondent’s lack of diligence in pursuing
a U visa, the DHS’s opposition to a continuance, and concerns regarding
administrative efficiency, which include the uncertainty as to when a visa
will be approved or become available and the respondent’s detained status.
See id. at 415–17.
The Immigration Judge did not clearly err in finding that the respondent
had not exercised due diligence in pursuing a U visa. As noted, the
respondent’s petition for a U visa is premised on a criminal incident that
transpired in 2009—a decade before he filed his petition with the USCIS.
The respondent has not shown what specific steps, if any, he took to pursue
a U visa between 2009 and the time he filed his petition.
It is significant, moreover, that despite being potentially eligible for a
U visa since 2009, the respondent only filed his petition for U nonimmigrant
status a month before his removal hearing. 4 Under these circumstances, the
respondent’s delayed pursuit of a U visa was unreasonable and indicative of
a lack of due diligence. See id. at 416 (stating that an Immigration Judge
should not grant a continuance “where the respondent appears to have
unreasonably delayed filing for collateral relief until shortly before [his]
hearing”); cf. Toure v. Barr, 926 F.3d 403, 409 (7th Cir. 2019) (upholding
the denial of a continuance based on an alien’s lack of diligence where the
alien “was eligible to apply for [a] waiver . . . on December 3, 2014, but he
waited until July 11, 2017, just three months before his long-scheduled merits
hearing[,]” to apply for it).
With regard to the DHS’s position, it opposed the respondent’s
continuance request below based on his unreasonable delay in petitioning for
a U visa. It additionally argued that it will take a considerable amount of
time for the USCIS to adjudicate his petition.
“An immigration judge should also consider administrative efficiency in
deciding whether to grant a continuance, since at bottom, continuances are
themselves intended to promote efficient case management.” Matter of
L-A-B-R-, 27 I&N Dec. at 416. Neither party provided the Immigration
Judge with an estimated processing time for the adjudication of the
respondent’s visa petition before the USCIS. See Matter of Castro-Tum,
27 I&N Dec. 271, 287 (BIA 2018) (providing that an Immigration Judge may
4

Counsel asserts on appeal that the respondent was not aware of the availability of
U nonimmigrant status until he consulted with counsel. There is no basis in the testimony
or evidence in the record for that assertion, which, in any case, is insufficient by itself to
establish that the respondent exercised due diligence in pursuing a U visa. See Matter of
Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980) (“Counsel’s arguments are not
evidence . . . .”).

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only grant “a reasonable adjournment” (quoting 8 C.F.R. § 1240.6 (2018))).
The respondent is therefore requesting a continuance for an unknown and
potentially lengthy period of time. As noted, moreover, the USCIS has
informed the respondent that the statutory cap for U visas has been reached
and they will not grant his petition until new visas become available. It is
uncertain when this will occur. Cf. Matter of L-A-B-R-, 27 I&N Dec. at 418
(“[G]ood cause does not exist if the alien’s visa priority date [when the visa
will actually become available] is too remote to raise the prospect of
[collateral relief] above the speculative level.”).
Consistent with the Attorney General’s directive to “consider
administrative efficiency” in assessing whether there is “good cause” for a
continuance regarding collateral relief, Immigration Judges should also
consider an alien’s detained status. Id. at 416. The Immigration Courts and
the Board expedite the adjudication of cases involving detained aliens,
recognizing the liberty interest of detained aliens and the interest of the
Government to reasonably limit the expense of detention. See Immigration
Court Practice Manual, § 9.1(e), at 130 (Sept. 26, 2019) (“Proceedings for
detained aliens are expedited.”); see also Board of Immigration Appeals
Practice Manual, § 4.7(a)(ii), at 64 (Sept. 23, 2019) (providing expedited
briefing deadlines for detained cases); cf. Matter of Quintero, 18 I&N Dec.
348, 350 (BIA 1982) (observing that Immigration Judges have a “duty” to
resolve immigration proceedings “in an expeditious manner”). Thus,
Immigration Judges should consider whether an alien is detained in
determining the length and number of continuances that are appropriate.
Granting an indeterminate continuance greatly impacts administrative
efficiency in a typical case, but particularly where, as here, the alien is
detained.
Considering and balancing the relevant primary and secondary factors in
this case, we agree with the Immigration Judge that there was no “good
cause” to continue the respondent’s proceedings to further await the
adjudication of his U nonimmigrant visa petition. 8 C.F.R. § 1003.29.
Specifically, we have considered the respondent’s lack of diligence, the
DHS’s opposition, and the concerns of administrative efficiency in this case,
which include the speculative and indefinite nature of his continuance
request, given the uncertainty as to when a U visa will be approved or become
available, and the respondent’s detained status. We conclude that these
factors outweigh the respondent’s prima facie eligibility for a U visa and the
impact that the approval of his visa may have on proceedings. The
respondent has not otherwise argued or demonstrated that his request for a

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continuance is “for a reasonable period of time.” Matter of Sanchez Sosa,
25 I&N Dec. at 815. 5
C. Due Process
“In order to establish a denial of the right to due process, [the respondent]
must show that he was prejudiced by the [Immigration Judge’s] actions.”
Souley v. Holder, 779 F.3d 720, 724 (7th Cir. 2015) (per curiam). The
Immigration Judge’s decision to deny the respondent’s request for a
continuance did not “cause[] him actual prejudice and harm [or] materially
affect[] the outcome of his case.” Matter of Villarreal-Zuniga, 23 I&N Dec.
886, 891 (BIA 2006). It is undisputed that the USCIS has yet to approve the
respondent’s U visa petition. 6 Moreover, as the Immigration Judge noted,
the respondent may continue to pursue his U visa, even after he is removed.
See 8 C.F.R. § 214.14(c)(1)(ii), (5)(i)(B) (2019). 7
The Immigration Judge’s written revisions to the transcript of his oral
decision also did not prejudice the respondent. These revisions are minor,
mostly grammatical, edits that do not impact the substance of the
Immigration Judge’s decision. The inaccuracies that the respondent alleges
5

The respondent argues that his removal proceedings should be terminated. However,
we agree with the Immigration Judge’s decision not to terminate these proceedings. See
Matter of Sanchez-Herbert, 26 I&N Dec. 43, 45 (BIA 2012) (stating that an Immigration
Judge may terminate proceedings in “specific circumstances consistent with the law and
applicable regulations”). The parties may file a joint motion to terminate these proceedings
without prejudice pursuant to 8 C.F.R. § 214.14(c)(1)(i) (2019). Matter of Sanchez Sosa,
25 I&N Dec. at 812 n.5.
6
Because the informational letter submitted on appeal reflects that the USCIS has not
approved the respondent’s visa petition, it is unlikely that it would change the Immigration
Judge’s decision to deny a continuance. Accordingly, this letter does not warrant remand.
See Matter of L-A-C-, 26 I&N Dec. 516, 526 (BIA 2015) (“A motion to remand for the
purpose of presenting additional evidence . . . will only be granted if the evidence . . . would
likely change the result in the case.”). Finally, to the extent that the respondent argues that
remand would permit him to seek a redetermination of his custody status, it is well
established that bond proceedings are “separate and apart from, and shall form no part of,
any . . . removal hearing or proceeding.” 8 C.F.R. § 1003.19(d) (2019).
7
The USCIS provides instructions on its website regarding the process for applying for
a U visa from “outside the United States.” USCIS, Victims of Criminal Activity:
U Nonimmigrant Status, https://www.uscis.gov/humanitarian/victims-human-traffickingother-crimes/victims-criminal-activity-u-nonimmigrant-status (June 12, 2018) (follow
“U nonimmigrant status” hyperlink; then follow “Applying for U Nonimmigrant Status
(U Visa)” hyperlink); see also U.S. Dep’t of State, Visas for Victims of Criminal Activity,
https://travel.state.gov/content/travel/en/us-visas/other-visa-categories.html (follow
“Visas for Victims of Criminal Activity” hyperlink; then follow “What is the difference
between U nonimmigrant status and U nonimmigrant visa?” hyperlink) (last visited Jan. 15,
2020) (providing same for applicants who are “overseas”).

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are in the Immigration Judge’s decision also do not materially impact the
outcome of this case. Finally, the respondent’s assertion that he was deprived
of “meaningful appeal” because of unidentified “transcription errors” is
without merit. Accordingly, the respondent’s appeal will be dismissed and
his motion to remand will be denied.
ORDER: The appeal is dismissed.
FURTHER ORDER: The motion to remand is denied.

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Matter of A-C-A-A-, Respondent
Decided by Attorney General July 26, 2021
U.S. Department of Justice
Office of the Attorney General
(1) Matter of A-C-A-A-, 28 I&N Dec. 84 (A.G. 2020) (“A-C-A-A- I”), is vacated in its
entirety. Immigration judges and the Board should no longer follow A-C-A-A- I in
pending or future cases and should conduct proceedings consistent with this opinion
and the opinions in Matter of L-E-A-, 28 I&N Dec. 304 (A.G. 2021) (“L-E-A- III”), and
Matter of A-B-, 28 I&N Dec. 307 (A.G. 2021) (“A-B- III”).
(2) The Board’s longstanding review practices that A-C-A-A- I apparently prohibited,
including its case-by-case discretion to rely on immigration court stipulations, are
restored.

BEFORE THE ATTORNEY GENERAL
Pursuant to 8 C.F.R. § 1003.1(h)(1)(i), I direct the Board of Immigration
Appeals (“Board”) to refer this case to me for my review. With the case thus
referred, I hereby vacate Matter of A-C-A-A-, 28 I&N Dec. 84 (A.G. 2020)
(“A-C-A-A- I”).
I recently vacated three of my predecessors’ decisions addressing asylum
claims based on domestic or gang violence because those decisions
attempted to answer the same important questions that the Department of
Justice and the Department of Homeland Security (“DHS”) are considering
in an ongoing rulemaking. See Matter of A-B-, 28 I&N Dec. 307 (A.G. 2021)
(“A-B- III”) (vacating Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018)
(“A-B- I”), and Matter of A-B-, 28 I&N Dec. 199 (A.G. 2021) (“A-B- II”));
Matter of L-E-A-, 28 I&N Dec. 304 (A.G. 2021) (“L-E-A- III”) (vacating
Matter of L-E-A-, 27 I&N Dec. 581 (A.G. 2019) (“L-E-A- II”). The prior
decision in this case stated that the respondent’s asylum claim is “similar to”
the claim in A-B- I, and the decision relied on and reaffirmed the analysis and
conclusions of the now-vacated decisions in A-B- I and L-E-A- II. A-C-A-A- I,
28 I&N Dec. at 90; see id. at 88–94. I therefore have determined that the
prior decision in this case should be vacated as well.
The prior decision also merits vacatur because it appears to impose rigid
procedural requirements that would undermine the fair and efficient
adjudication of asylum claims. The Board’s decision in this case did not
address some elements of the respondent’s asylum claim because DHS had
opted not to challenge those elements in its appeal. The prior decision
rejected that approach, stating that “DHS’s decision not to expressly
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challenge a particular element of an asylum claim did not relieve the Board
from its need to review the immigration judge’s determination as to that
element.” A-C-A-A- I, 28 I&N Dec. at 88. The prior decision also instructed
that “the Board must meaningfully review each of th[e] elements” of an
asylum claim in every “appeal from a grant of asylum.” Id. That broad
language not only precludes the Board from relying on DHS’s decision not
to contest particular elements on appeal, but also appears to prohibit “reliance
on immigration court level stipulations.” Centro de La Raza v. Exec. Off. for
Immigr. Rev., No. 21-cv-463, 2021 WL 916804, at *10 (N.D. Cal. Mar. 10,
2021). In so doing, the prior decision “significantly expands the scope of
issues that will need to be briefed on appeals” to the Board. Id. at *27.
By prohibiting the Board from relying on stipulations or on DHS’s
decision not to contest certain elements on appeal, the prior decision departed
from longstanding practice. The regulations governing immigration court
proceedings expressly contemplate the use of pre-hearing conferences to
“narrow [the] issues” in dispute, including by “obtain[ing] stipulations
between the parties.” 8 C.F.R. § 1003.21(a). The regulations also direct the
“party taking the appeal” from an immigration judge’s decision to
“specifically identify the findings of fact, the conclusions of law, or both, that
are being challenged,” indicating that the appellant largely shapes the focus
of the appeal. Id. § 1003.3(b). Until the prior decision in this case, therefore,
the Board had addressed the use of stipulations and the consequences of
DHS’s decision not to contest specific elements on a case-by-case basis,
subject to the guidance of the Executive Office for Immigration Review. See
Executive Office for Immigration Review, U.S. Department of Justice,
Immigration Court Practice Manual § 4.18(b)(2), https://www.justice.gov/
eoir/eoir-policy-manual/4/18 (last updated Jan. 12, 2021) (encouraging the
use of pre-hearing statements “to narrow and reduce the factual and legal
issues in advance of an individual calendar hearing”); Executive Office for
Immigration Review, U.S. Department of Justice, BIA Practice Manual
§ 4.6(b),
https://www.justice.gov/eoir/eoir-policy-manual/iii/4/6
(last
updated Dec. 22, 2020) (explaining that briefs before the Board “should not
belabor facts or law that are not in dispute”).
This traditional approach helps ensure efficient adjudication by focusing
the immigration courts’ limited resources on the issues that the parties
actually contest rather than those on which they agree. The categorical
language in the prior decision appears to foreclose this practice. And the
prior decision made that important change based primarily on the
now-vacated decisions in A-B- I and L-E-A- II and without seeking further
briefing. See A-C-A-A- I, 28 I&N Dec. at 88–89. I am therefore vacating the
prior decision in its entirety to return these matters to the Board’s traditional
case-by-case discretion.
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Accordingly, I hereby vacate the decision in A-C-A-A- I and instruct that
immigration judges and the Board should no longer follow A-C-A-A- I in
pending or future cases. I remand this matter to the Board for further
proceedings consistent with this opinion, and with the opinions in A-B- III
and L-E-A- III.

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