Cabrera v. Garland, No. 20-1943 (4th Cir. 2022)Annotate this Case
Cabrera, a citizen of Mexico, legally entered the U.S. on a B-2 visa and overstayed. In 2015, her boyfriend physically assaulted her in front of her child. The responding officer noted her physical injuries. Cabrera’s child stated that the man had grabbed Cabrera and choked her. Cabrera’s boyfriend was charged with criminal domestic violence, Cabrera aided the police in prosecuting him, rendering her eligible to seek a U visa, available to noncitizens who have been a victim of criminal activity and who help authorities investigating or prosecuting that crime, 8 U.S.C. 1101(a)(15)(U). Cabrera obtained the required certification, attesting to her help, from law enforcement in December 2017. In February 2018, before Cabrera filed her U visa application, DHS issued her notice to appear. A month later, Cabrera filed her U visa application. She moved to continue the deportation proceedings.
The IJ denied the motion, acknowledging there was a “significant probability” that USCIS would grant the U visa. The BIA dismissed Cabrera's appeal, finding that she failed to show good cause for a continuance. The Fourth Circuit vacated. The BIA and IJ abused their discretion. The BIA has held that there is a “rebuttable presumption” that a movant who has filed a prima facie approvable application for a U visa warrants a favorable exercise of discretion for a continuance. The BIA failed to explain why it departed from established policies.