Ninth Circuit Holds Parole for Waitlisted U-Visa Petitioners Is Discretionary, Not Mandatory

The Ninth Circuit has affirmed in large part the dismissal of claims brought by more than 150 U-visa petitioners against USCIS, holding that the regulation governing the U-visa waiting list gives the agency discretion, not a mandatory duty, to grant advance parole to domestic petitioners who have already received deferred action.  However, the Court held the district court erred in rejecting, without full consideration, the alternative injury theories of petitioners whose petitions had merely been deemed "bona fide" rather than placed on the formal waiting list, and remanded for further proceedings on whether those petitioners have standing to challenge delays in obtaining a full waitlist determination.

The full text of U Visa Appellants v. Director, USCIS can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2026/09/14/24-6824.pdf

BIA Effectively Eliminates Administrative Closure for U Visa Applicants

The Board of Immigration Appeals has determined that when a “U nonimmigrant visa is not immediately available to a respondent and the record does not establish that one is likely to be available in the reasonably near future, administrative closure over DHS’ objection is inappropriate.” The Board further noted that a six month period of administrative closure is presumptively reasonable.

The full text of Matter of Ibarra Vega can be found here: https://www.justice.gov/eoir/media/1429421/dl?inline

Second Circuit Applies Sanchez Sosa to Motion to Remand

The Second Circuit has applied the factors outlined in Matter of Sanchez Sosa - which typically apply to a motion to continue due to a pending U visa application - to a motion to remand a case pending before the Board of Immigration Appeals.

The full text of Paucer v. Garland can be found here:

https://ww3.ca2.uscourts.gov/decisions/isysquery/24e4fa91-b28a-4a67-a25f-47efb157f491/10/doc/21-6043_amd_opn.pdf#xml=https://ww3.ca2.uscourts.gov/decisions/isysquery/24e4fa91-b28a-4a67-a25f-47efb157f491/10/hilite/

Second Circuit Applies Sanchez Sosa to Motions to Remand

The Second Circuit has determined that the factors outlined in Matter of Sanchez Sosa apply to a motion to remand filed when a case is on appeal to the Board of Immigration Appeals.

The full text of Paucar v. Garland can be found here:

https://www.ca2.uscourts.gov/decisions/isysquery/0c9c1407-6be4-4d19-b675-9781ca9b987f/7/doc/21-6043_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/0c9c1407-6be4-4d19-b675-9781ca9b987f/7/hilite/

Fourth Circuit Finds Agency Abused its Discretion by Denying Continuance to U Visa Applicant

The Fourth Circuit has determined that the agency abused its discretion by denying a continuance to a U visa applicant, when the Immigration Judge determined that she was likely to have her application approved. The court noted that the agency relied on “secondary factors” to determine that no good cause existed for a continuance: (1) the petitioner had been “found removable and did not submit any applications for relief” to the IJ; (2) she could still pursue her U visa application and seek a stay of removal from DHS; (3) DHS opposed the motion; and (4) it would not be administratively efficient to grant a continuance.” The agency failed to evaluate any of the primary factors: whether the collateral relief (i.e, the U visa) is likely to be granted and whether the decision on the collateral relief will affect the outcome of the removal proceedings.

The full text of Garcia Cabrera v. Garland can be found here:

https://www.ca4.uscourts.gov/Opinions/201943.P.pdf

Sixth Circuit Permits U Visa Applicants to Bring Unreasonable Delay Claims for Waitlist Determinations

The Sixth Circuit has determined that U visa applicants may bring unreasonable delay claims related to USCIS’ failure to adjudicate their applications for waitlist purposes and failure to make a bona fide determination on their applications. However, the court cannot compel USCIS to adjudicate pre-waitlist employment authorization applications.

“Nor are we persuaded that USCIS’s release of its average U-visa-application processing time should prompt us to decide that Plaintiffs’ years-long wait is reasonable. The average adjudication time says little about the unreasonableness of USCIS’s delay in Plaintiffs’ case; this number also does not alter how most (if not all) U-visa adjudications might be unreasonably delayed. We find it unhelpful to fixate on the average snail’s pace when comparing snails against snails in a snails’ race.”

The full text of Barrios Garcia v. DHS can be found here:

https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0217p-06.pdf

An amended opinion can be found here:

https://www.opn.ca6.uscourts.gov/opinions.pdf/22a0027p-06.pdf

Eighth Circuit Remands Case for Application of Sanchez Sosa Factors

The Eighth Circuit vacated the agency’s denial of a motion to reopen and remand to seek a continuance in light of a U visa application filed during the pendency of the appeal. The court noted that the Board can either apply the Sanchez Sosa factors or remand the case to an Immigration Judge to do so.

The full text of Quecheluno v. Garland can be found here:

https://ecf.ca8.uscourts.gov/opndir/21/08/202200P.pdf

Fourth Circuit Remands Unlawful Delay Claims Brought by U Visa Applicants

The Fourth Circuit reversed the dismissal of unlawful delay claims brought by U visa applicants who filed their applications for status in 2015 and 2016, and remanded the claims for further proceedings before the District Court. The court, however, found no authority to compel the agency to issue pre-wait list employment authorization to the applicants.

The full text of Gonzalez, et. al v. Cuccinelli can be found here:

https://www.ca4.uscourts.gov/Opinions/191435.P.pdf

First Circuit Overturns Denial of Motion to Reopen for Individual on U Visa Waitlist

The First Circuit has determined that the Board of Immigration Appeals “abused its discretion in this case because it failed to follow its own precedents, persuasive circuit law, and DHS policies” when it denied a timely motion to reopen filed by an individual placed on the U visa waitlist and granted deferred action. Because the petitioner had asked for reopening and remand to seek a continuance before the Immigration Judge, the Court determined that the standard in Matter of Sanchez Sosa was the appropriate standard to apply. “The Board itself has also found that a U visa waitlist determination warranted reopening and remand, using the Sanchez Sosa standard, in at least two unpublished decisions.”

The full text of Granados Benetiz v. Wilkinson can be found here:

http://media.ca1.uscourts.gov/pdf.opinions/20-1541P-01A.pdf

Ninth Circuit Issues En Banc Decision Regarding U Visa Derivative Spouses

The Ninth Circuit, sitting en banc, has determined that a regulation requiring a U visa applicant to be married at the time of filing the application in order to file a derivative petition for their spouse is inconsistent with the statute. Rather, the spouses must only be married at the time the application is adjudicated for the non-applying spouse to qualify for derivative status.

The full text of Medina Tovar v. Zuchowski can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/12/03/18-35072.pdf

Ninth Circuit Grants Rehearing En Banc Regarding Derivative U Visa Spouses

The Ninth Circuit has granted a petition for en banc rehearing of Tovar v. Zuchowski, a case construing the definition of a derivative spouses for U visa purposes.

The order granting the petition can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/05/07/18-35072_en%20banc_order.pdf

My blog post on the original 3-judge panel decision can be found here:

http://www.sabrinadamast.com/journal/2020/2/1/ninth-circuit-affirms-u-visa-regulations-governing-derivative-spouses

Seventh Circuit Remands to Evaluate Continuance for U visa

The Seventh Circuit reaffirmed that Immigration Judges “have the power to waive an alien’s inadmissibility, grant continuances, defer removal, and take other similar steps that may be required before a U visa is issued.” As such, it remanded for further analysis as to whether the petitioner was entitled to a continuance. “If the Board believed that Guerra Rocha’s request for a continuance was not warranted even though her application for the U visa was prima facie valid, it had to explain why it took that position. It is not enough merely to announce that it has taken account of all relevant factors.”

The full text of Guerra Rocha v. Barr can be found here:

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2020/D03-04/C:18-3471:J:Wood:aut:T:fnOp:N:2482817:S:0 

BIA Issues Decision Addressing Continuances for Collateral Relief

The Board of Immigration Appeals (BIA) affirmed the denial of a continuance to a detained U visa applicant, even though the applicant had been conditionally approved for U status and placed on the waitlist.

“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 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.” The BIA then noted that the respondent was detained, had waiting until one month prior to his merits hearing to file the U visa, that DHS opposed the continuance, that it was unclear when a U visa would be available to the respondent, and that the respondent had waited 10 years from the date of the criminal incident to file for U nonimmigrant status.

The full text of Matter of Mayen-Vinalay can be found here:

https://www.justice.gov/eoir/page/file/1236941/download

Ninth Circuit Affirms U Visa Regulations Governing Derivative Spouses

The Ninth Circuit has deferred to the regulation that requires a derivative spouse to be married to the principal U visa applicant on the date the U visa application is filed in order to qualify for derivative U nonimmigrant status. Judge Watford dissented, nothing the multitude of other places where “accompanying or following to join” spouses have been defined as those who are married to the primary applicant on the date the application for immigration benefits is granted, not on the date it is filed.

The full text of Tovar v. Zuchowski can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2020/01/17/18-35072.pdf

An amended opinion, reaching the same outcome, can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/02/12/18-35072.pdf

Ninth Circuit Finds that Denial of U Visa is Challengeable in Federal Court

The Ninth Circuit has determined that the denial of a U visa is challengeable in federal district court under the Administrative Procedures Act. With respect to the petitioner’s claim that USCIS failed to consider all credible evidence, the Ninth Circuit held the appropriate standard of review on remand to the District Court would be whether USCIS acted in a manner that was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. With respect to his claim that Washington’s felony harassment crime is a qualifying crime for U visa purposes, the Court left it to the District Court in the first instance to determine the appropriate standard of review. The petitioner’s challenge to USCIS’s factual finding that felony harassment was not detected by law enforcement would also be reviewed for an abuse of discretion or substantial evidence.

The full text of Perez Perez v. Wolf can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2019/11/22/18-35123.pdf

Eighth Circuit Affirms Validity of Matter of Sanchez Sosa

The Eighth Circuit has remanded a case in which the petitioner requested reopening and remand of his removal proceedings based on a pending U visa application. The court noted that the Board of Immigration Appeals failed to apply its own precedent in Matter of Sanchez Sosa.

The full text of Caballero-Martinez v. Barr ca be found here:

https://ecf.ca8.uscourts.gov/opndir/19/04/172044P.pdf

Seventh Circuit Reaffirms that Immigration Judges can Review the Denial of U Visa Waivers

The Seventh Circuit has rejected the Board of Immigration Appeals' decision in Matter of Khan and reaffirmed that Immigration Judges have the authority to review the denial of a waiver of inadmissibility submitted in conjunction with a U visa application.

The decision in Baez-Sanchez v. Sessions can be found here:

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2017/D10-06/C:16-3784:J:Easterbrook:aut:T:fnOp:N:2041304:S:0

BIA Finds that IJs do not Have Jurisdiction to Grant Waivers to U Visa Petitioners

The Board of Immigration Appeals (BIA) has determined that an Immigration Judge does not have jurisdiction to grant a waiver of inadmissibility to a U visa petitioner.  In so doing, the BIA breaks with the Seventh Circuit on this issue.

The full text of Matter of Khan can be found here:

https://www.justice.gov/sites/default/files/pages/attachments/2016/09/08/3870_0.pdf

DHS to Implement a Parole Policy for U Visa Petitioners

USCIS will implement a parole policy in 2017 for U visa petitioners and derivatives.  Though the final policy was not announced, USCIS indicates that the following policy recommendations were made by the Ombudsman's Office:

1. Consistent with its regulations, USCIS should afford parole to eligible U petitioners and family members on the waiting list who reside abroad by creating a policy to facilitate entry into the United States while waiting for a visa to become available.

2. The parole policy created by USCIS should allow for concurrent filings of the U visa petitions and requests for parole.

3. Cases should be adjudicated at the Vermont Service Center, where U petitions currently are processed, to ensure consistent and effective adjudication, and where Congress expressly authorized the placement of the adjudication of vulnerable populations.

We'll anxiously await the final policy next year!

The announcement of the policy can be read here: 

https://www.dhs.gov/sites/default/files/publications/cisomb-u-parole-recommendation-061616.pdf

Third Circuit Finds that Immigration Judge has no Authority to Grant a U Visa Waiver

In a published decision, the Third Circuit has determined that an Immigration Judge has no authority to grant a waiver of inadmissibility in conjunction with a U visa.  In so doing, the court creates a circuit split, with the Seventh Circuit having previously found that an Immigration Judge does have this authority.

The full text of Sunday v. Attorney General can be found here: 

http://www2.ca3.uscourts.gov/opinarch/151232p.pdf