Seventh Circuit Finds IJs Have Jurisdiction of 212(d)(3) Waivers for U Nonimmigrants
If you represent U visa and U status applicants, you already know that immigration judges have no jurisdiction over applications for U status or for applications for adjustment of status under INA § 245(m). By statute, USCIS has exclusive jurisdiction over theses applications, including waivers of inadmissibility under INA § 212(d)(14), the waiver provision that exclusively applies to the U status applicants.
A recent decision in the 7th Circuit, L.D.G. v. Holder, No. 13-1000 , (7th Cir. 2014), opens the door for immigration judge jurisdiction over non-immigrants waivers under INA § 212(d)(3). In L.D.G., a respondent in removal proceedings sought a continuance while she pursued U status. Because the applicant was also inadmissible on multiple bases, including crime-based inadmissibility, she filed an application for a waiver, which was denied by USCIS, resulting in the denial of U status. The respondent then asked the immigration judge to independently consider her application for a waiver of inadmissibility and the judge determined that he lacked jurisdiction to do so. On appeal, the Board upheld the decision of the immigration judge, and L.D.G. appealed to the Seventh Circuit.
The court's decision notes that there are two inadmissibility waiver provisions under INA § 212(d) that are potentially available to U status applicants and only one of them limits jurisdiction to USCIS. By statute, only USCIS may grant the special waiver under § 212(d)(14) available to U applicants, but the inadmissibility waiver at § 212(d)(3)(A) vests the authority to waive inadmissibility to the Attorney General, which includes immigration court as part of the Department of Justice. Reviewing the statutory language, the court concluded that 212(d)(14) and 212(d)(3)(A) waivers "can and do co-exist, and...the IJ has jurisdiction to grant a waiver of inadmissibility to a U visa applicant..." As a result, the court remanded the case back to the IJ to consider the respondent's application for a waiver.