U visas, Waivers and IJ Authority in light of Matter of Khan
On September 8, 2016, the Board of Immigration Appeals (“BIA”) issued a precedent decision in Matter of Khan, 26 I&N Dec. 797 (BIA 2016), addressing a circuit split in regard to waivers of inadmissibility for petitioners for U nonimmigrant status (“U visa applicants”) . At issue was whether an Immigration Judge (“IJ”) has the authority to adjudicate a request for a waiver of inadmissibility made by U visa applicants under section 212(d)(3)(A)(ii) of the Immigration and Nationality Act (“INA” or “Act”).
Respondent Khan, a lawful permanent resident since 1992, was placed into removal proceedings following his 2008 conviction for an aggravated felony. He did not request relief from removal and conceded removability. Khan also filed applications for a U visa and waiver of inadmissibility with the U.S. Citizenship and Immigration Services (“USCIS”), and his removal proceedings were administratively closed in 2013 pending the adjudication of those applications. The USCIS denied his applications in 2014, and his case was subsequently recalendared with the immigration court. Khan filed a request with the IJ seeking a different type of waiver of inadmissibility under section 212(d)(3)(A)(ii) of the INA. The IJ adjudicated and denied the waiver request as a matter of discretion. Khan appealed the IJ’s decision, and the BIA dismissed his claims, holding that the IJ lacked authority to adjudicate the waiver. To better understand the BIA’s decision, a basic overview of the two waivers of inadmissibility discussed in Khan is provided below.
Waiver Under INA § 212(d)(14)
When Congress created the U visa, it also created a waiver of inadmissibility specifically for U visa applicants codified in section 212(d)(14) of the INA. As part of the U visa adjudication process, the USCIS determines if an applicant has any grounds of inadmissibility (e.g., unlawful presence, certain criminal convictions). Thus, applicants who will trigger a ground of inadmissibility may submit a section 212(d)(14) waiver application in conjunction with their U visa application. USCIS then determines whether it is “in the public or national interest” to grant the requested waiver, subject to certain exceptions. By regulation, the USCIS has exclusive jurisdiction over U visa applications.
Waiver Under INA § 212(d)(3)(A)(ii)
A broader waiver of inadmissibility for nonimmigrants, not limited to U visa applicants, is available under section 212(d)(3)(A)(ii) of the INA. Generally, this waiver is requested by inadmissible aliens seeking admission without a visa at the port of entry. It is granted at the discretion of the Attorney General (i.e., the Admissibility Review Office (ARO) within U.S. Customs and Border Protection (CBP)) which has the authority to waive nearly all grounds of inadmissibility, subject to certain exceptions. When determining whether to grant this type of waiver, the adjudicator also weighs the balancing factors set forth in Matter of Hranka, 16 I&N Dec. 491 (BIA 1978).
In 2014, the practice of USCIS exclusively handling waivers of inadmissibility for U visa applicants was successfully challenged in L.D.G. v. Holder, 744 F.3d 1022 (7th Cir. 2014). Petitioner L.D.G. was a U visa applicant in removal proceedings, and argued that the IJ had concurrent jurisdiction to adjudicate her application for a waiver of inadmissibility under section 212(d)(3)(A) of the INA. The Court agreed, holding that the plain language of the section grants the Attorney General, as well as IJs, the authority to waive the inadmissibility of U visa applicants, subject only to the statute’s unwaivable grounds which were not applicable in L.D.G.’s case. In short, the Court found that the two statutory schemes can coexist and the fact that only the USCIS may grant waivers under section 212(d)(14) does not make it the only means by which an applicant can obtain a waiver.
In August 2016, however, the Third Circuit took the opposite position in Sunday v. Att’y Gen. of U.S., No. 15-1232, 2016 WL 4073270 (3d Cir. Aug. 1, 2016). Petitioner Sunday was a U visa applicant in removal proceedings, and argued that the IJ had authority to issue him a waiver of inadmissibility under section 212(d)(3)(A)(ii) of the INA. The Court disagreed, holding that an IJ’s authority to consider a section 212(d)(3)(A)(ii) waiver is limited by regulation “to aliens seeking admission” and only to “those instances where the alien has applied [for admission] to a district director prior to entry”.
BIA Decision in Khan
In September 2016, the BIA addressed the two circuit opinions in Khan’s appeal. Siding with the Third Circuit in Sunday, the BIA reiterated its longstanding position that IJs’ 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 IJ. It further explained that IJs “only address matters falling within the scope of their jurisdiction to resolve contested issues in removal proceedings—not collateral matters”. Thus, the BIA reasoned, even if the IJ had granted Khan’s waiver request using the Seventh Circuit’s rationale in L.D.G., it would not have allowed the IJ to resolve the issue of his removability. Khan still “would have been required to re-file a U visa application with the USCIS and await its adjudication”. For these reasons, the BIA concluded that IJs do not have the authority to adjudicate waivers of inadmissibility for U visa applicants.
Had the BIA followed the Seventh Circuit in L.D.G., it could have given IJs nationwide the discretion to grant requests for 212(d)(3)(A) waivers of inadmissibility for U visa applicants. It also could have given U visa applicants nationwide the option of requesting such a waiver from the USCIS, an IJ or both. For now, the BIA has ensured that the adjudication of waivers of inadmissibility for U visa applicants remains with the USCIS and not in the immigration courts.
 Generally, a U visa offers protection from deportation and a path to lawful permanent residence to victims of qualifying crimes (e.g., rape, domestic violence) who have suffered mental or physical abuse, and are helpful to law enforcement or government officials in the investigation or prosecution of criminal activity. See 8 U.S.C. §§ 1101(a)(15)(U), 1184(p).
 As defined in INA § 101(a)(43)(A).
 See INA § 212(a) et seq.
 Unwaivable grounds are defined in INA § 212(a)(3)(E).
 8 C.F.R. § 214.14(c)(1).
 Unwaivable grounds are defined in INA §§ 212(a)(3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), (3)(E)(i), and (3)(E)(ii).
 L.D.G.,744 F.3d at 1030.
 Sunday, slip op. at 6-8 (citing 8 C.F.R. §§ 1212.4(b), 1235.2(d)).
 Sunday, slip op. at 11.
 Matter of Khan at 801-802 (citing Matter of Kazemi, 19 I&N Dec. 49, 52 (BIA 1984); Matter of Fueyo, 20 I&N Dec. 84, 86−87 (BIA 1989)).
 Id. at 804 (citing Matter of Yauri, 25 I&N Dec. 103, 110 (BIA 2009); Matter of Aceijas-Quiroz, 26 I&N Dec. 294, 299 (BIA 2014)).