News from the Courts

Posted on: July 23rd, 2018
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Court of Appeals Overturns Board of Immigration Appeals Ruling Regarding Immigration Judges’ Authority to Grant Waivers of Inadmissibility

Finest Meridor, A Haitian national and citizen, arrived in the United States 25 years ago as a political refugee. Though he applied for political asylum, he withdrew his application after it went unresolved for many years. In January 2013, the Department of Homeland Security (DHS) notified Meridor of his removability on the grounds of his presence in the country as a foreign national without a valid visa or passport and his convictions for a crime involving moral turpitude and a controlled substances offense. DHS took him into custody pending his deportation hearing, and meanwhile Meridor applied for asylum and withholding of removal. The Immigration Judge determined that Meridor was in fact removable and denied his claims for asylum and withholding of removal. Before the IJ could rule on Meridor’s move for reconsideration, Meridor’s new legal representation applied for a U visa and waiver of inadmissibility with United States Immigration and Customs Enforcement (USCIS). Taking in account the newly filed U visa application which nullified his removal order, the IJ reopened Meridor’s file and granted his motion to terminate the removal proceedings.

While Meridor’s U visa application was being processed by USCIS, the Immigration Judge agreed to assess the merits of his waiver application. Acting as a delegate for the Attorney General, the IJ warranted her jurisdiction over the waiver application, asserting the extraordinary nature of his case afforded her the discretion to grant his waiver of inadmissibility. However, before the IJ could compose a written decision, USCIS denied Meridor’s U visa application and waiver of inadmissibility applications.

Three weeks after the USCIS decision, the Immigration Judge granted the waiver, determining that his reasons for wishing to remain in the United States were more imperative than his criminal history and the risk of harm that he would face if admitted. However, the IJ acknowledged that she was not authorized to grant the U visa Meridor sought, and thus ordered his removal to Haiti.

The BIA reversed the IJ’s decision to grant the waiver, asserting that DHS exclusively can grant waivers of inadmissibility for U visa applications, and even if she were able to grant the waiver that Meridor was ineligible for such a waiver. The BIA affirmed Meridor’s removal, taking an opposing viewpoint to the IJ, determining that Meridor’s criminal history outweighed the reasons he put forth for remaining in the country and that his risk of harm was overstated. Meridor petitioned this decision for review, submitting an emergency motion to stay his removal, a motion which the Court of Appeals denied, and Meridor was subsequently removed to Haiti. USCIS, in the meantime, refused reconsideration of Meridor’s initial request for a waiver and refused according the decision of the IJ any merit due to the BIA vacating this decision. Furthermore, USCIS denied Meridor’s second waiver request, filed in March 2015, and based on this denial also denied his second U visa application on grounds of inadmissibility.

The Court of Appeals reviewed the BIA decision, concluding the BIA had committed legal error. The Court of Appeals found that the BIA’s alternative holding that Meridor’s risk of harm was overstated was based on a disagreement rather than a factual determination; the BIA reviewed the IJs decision de novo as opposed to the appropriate clear error review. Since this alternative holding failed, the Court of Appeals was then permitted to determine whether the IJ had jurisdiction to grant a waiver of admissibility, an authority which the Court determined the IJ did have. By the letter of the law, the Attorney General of the United States hold the authority to waive the inadmissibility of U visa applicants, an authority which, as a delegate of the Attorney General, is also afforded to an Immigration Judge. The language surrounding this authorization was never addressed by the BIA in its ruling, though such an analysis is a standard starting point in statutory interpretation.

The Court of Appeals decided, therefore, to grant Meridor’s petition for review of the BIA’s final removal order, vacate that order, and remand for further proceedings, directing the BIA to reconsider Maridor’s final order of removal.

For more information, view the full case.

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