Man v. Barr, No. 13-70840 (9th Cir. 2019)
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The Ninth Circuit denied petitions for review of the BIA's orders dismissing petitioner's appeal of the IJ's denial of his application for adjustment of status under section 245(a) of the Immigration and Nationality Act (INA) and denial of petitioner's requests to reopen his removal proceedings so that he could seek a waiver of inadmissibility to obtain a U visa.
The panel noted that petitioner acknowledged that his petition with respect to adjustment of status is controlled by Roman-Suaste v. Holder, which held that convictions under California Health and Safety Code section 11359 categorically constitute drug trafficking aggravated felonies under the INA. Therefore, petitioner was not statutorily eligible for adjustment of status.
In removal proceedings commenced against a non-citizen after the non-citizen has already entered the country, the panel held, in light of Matter of Khan, that an IJ does not have the authority to grant the non-citizen a U visa waiver of inadmissibility under 8 U.S.C. 1182(d)(3)(A)(ii). The panel agreed with the district court that immigration judges lack the authority to consider a request by a petitioner for U nonimmigrant status for a waiver under section 212(d)(3)(A)(ii) of the Act. The panel explained that Matter of Khan was entitled to deference where, as here, the relevant statutory provisions were ambiguous and the holding was reasonable.
Court Description: Immigration Denying Philip Man’s petitions for review of three orders of the Board of Immigration Appeals, the panel held that, in removal proceedings commenced against a non- citizen after the non-citizen has already entered the country, an Immigration Judge lacks authority to grant the non-citizen a U visa waiver of inadmissibility under 8 U.S.C. § 1182(d)(3)(A)(ii). In one order on review, the Board dismissed Man’s appeal of an IJ’s denial of Man’s application for adjustment of status, concluding that Man’s conviction under California Health and Safety Code § 11359 was a drug trafficking aggravated felony that made him inadmissible and ineligible for adjustment of status. The panel denied Man’s petition for review of this order, noting that Man acknowledged that his petition was controlled by Roman-Suaste v. Holder, 766 F.3d 1035 (9th Cir. 2014). In the other two orders on review, the Board denied Man’s requests to reopen his removal proceedings so that he could seek a waiver of inadmissibility to obtain a U visa. In relevant part, the Board denied reopening on the ground that an IJ would lack authority to consider Man’s request for a U visa waiver if his case were reopened. In doing so, the Board relied on Matter of Khan, 26 I. & N. Dec. 797 (BIA 2016), which held that an IJ lacks authority to grant a waiver of MAN V. BARR 3 inadmissibility under 8 U.S.C. § 1182(d)(3)(A)(ii) to a petitioner for a U visa who is in the United States. Noting that Matter of Khan is entitled to deference if the relevant statutory provisions are ambiguous and the holding is reasonable, the panel concluded that ambiguity reigns here: Congress has not explained how to reconcile its grant of a specific inadmissibility waiver and sole grant of U visa adjudicatory power to the Secretary of Homeland Security, 8 U.S.C. § 1182(d)(14), with the pre-existing inadmissibility waiver power vested in the Attorney General for aliens who are seeking admission, 8 U.S.C. § 1182(d)(3)(A)(ii). The panel also agreed with the Board’s reasoning in Matter of Khan, noting that the Board explained that: 1) it had previously held that an IJ’s authority to adjudicate waivers under § 1182(d)(3)(A)(ii) 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 proceedings where a waiver request has been renewed before the IJ; and 2) the conditions under which the Attorney General has delegated authority to IJs to adjudicate such waivers are circumscribed by regulations that limit an IJ’s authority to adjudicate the waiver to narrow and specific circumstances that are inapplicable to a petitioner for a U visa. With its holding, the panel joined the Third Circuit, which considered this question and came to the same conclusion as the Board, and the panel declined to follow the contrary approach of the Seventh and Eleventh Circuits. 4 MAN V. BARR
This opinion or order relates to an opinion or order originally issued on July 16, 2019.
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