Argued October 29, 2013
On Petition for Review of a Final Order of the Board of Immigration Appeals.
For L. D. G., Petitioner: Charles Roth, Attorney, Chicago, IL; Megan E. Thibert-Ind, Attorney, MCDERMOTT, WILL & EMERY, Chicago, IL.
For ERIC H. HOLDER, JR., Attorney General of the United States, Respondent: Anthony W. Norwood, Attorney, OIL, Attorney, DEPARTMENT OF JUSTICE, Civil Division, Immigration Litigation, Washington, DC.
For COMMUNITY LEGAL SERVICES IN EAST PALA ALTO, ASISTA IMMIGRATION ASSISTANCE, Amicus Curiae: Ilyce Sue Shugall, Attorney, COMMUNITY LEGAL SERVICES IN EAST PALO ALTO, East Palo Alto, CA.
Before WOOD, Chief Judge, and KANNE and HAMILTON, Circuit Judges.
Wood, Chief Judge.
This petition for review of a final order of removal is brought by L.D.G., the victim of a serious crime who was also convicted of a more mundane one. When L.D.G. applied for a U Visa in order to forestall her impending removal from the United States, U.S. Citizenship and Immigration Services (USCIS) refused to waive her statutory inadmissibility stemming from her uninspected entry and prior drug conviction. Facing certain removal, she asked the Immigration Judge (IJ) presiding over her removal proceedings to determine independently whether to waive her inadmissibility. The IJ declined and found that USCIS alone had jurisdiction to provide such a waiver. The Board of Immigration Appeals affirmed. We must now decide whether the IJ correctly declined jurisdiction, or if Congress has created concurrent jurisdiction under which both the Department of Justice and the Department of Homeland Security may grant waivers of inadmissibility to U Visa applicants who qualify for them.
We begin with a bit of background about the labyrinthine statutory structure that lies behind this appeal. Congress created the U Visa as part of the Victims of Trafficking and Violence Protection Act of 2000. See Pub. L. No. 106-386, 114 Stat. 1464 (2000). U Visas allow the victims of certain statutorily designated crimes who have suffered " substantial physical and mental abuse," and who have been or are likely to be helpful to authorities in investigating or prosecuting that crime, to remain in the United States as lawful temporary residents despite being otherwise subject to removal. See 8 U.S.C. § § 1101(a)(15)(U), 1184(p). The provision is designed to encourage noncitizen crime victims to come forward and help law enforcement investigate and prosecute their victimizers without fear of deportation. See New Classification for Victims of Criminal Activity; Eligibility for " U" Nonimmigrant Status, 72 Fed. Reg. 53014, 53014.15 (Sept. 17, 2007).
U Visas are not automatically granted to qualifying noncitizens. The decision whether to grant a U Visa is statutorily committed to the discretion of the Secretary of Homeland Security, see 8 U.S.C. § 1101(a)(15)(U), and is exercised through USCIS, an office within the Department of Homeland Security (DHS) and a successor to the now-defunct Immigration and Naturalization Service. The number of U Visas that can be issued annually is capped at 10,000, see 8 U.S.C. § 1184(p)(2)(A), and USCIS has filled that quota every year since it began issuing the visas in 2008. See News Release, U.S. Citizenship & Immigration Services, USCIS Approves 10,000 U Visas for 5th Straight Fiscal Year (Dec. 11, 2013), available at http://www.uscis.gov/news/alerts/uscisapproves-10000-u-visas-5th-straight-fiscal-year. The allowance fills quickly: for fiscal year 2014, it was reached in December 2013. Id.
Further complications arise for noncitizens who are inadmissible to the United States under 8 U.S.C. § 1182(a) when they apply for a U Visa. At this point, it is important to understand the conceptual difference between inadmissibility and removability. Removability is relatively straightforward: a noncitizen who is eligible for removal is, as the term implies, potentially subject to removal proceedings (once called deportation proceedings for people found within the United States). DHS initiates the removal process. It pursues it as an administrative proceeding
within the Executive Office for Immigration Review (EOIR), an arm of the Department of Justice (DOJ). The removal proceeding is first heard by an IJ, with the possibility of appeal to the Board of Immigration Appeals (Board); a petition for review from a final order of removal can be brought to the court of appeals for the circuit in which the IJ's hearing took place, see 8 U.S.C. § 1252(a)(5), (b)(2), unless another statutory provision independently makes the order unreviewable. Inadmissibility is slightly different, although the grounds for removability and inadmissibility generally overlap for noncitizens who entered without inspection. The statute defines as " inadmissible" the classes of aliens who are ineligible for visas or admission to the United States. See 8 U.S.C. § 1182(a). As a practical matter, an inadmissible alien is not eligible to seek any of a number of statutory " outs" that allow a person to remain lawfully in the United States, such as an adjustment of status to permanent resident under 8 U.S.C. § 1255 or a nonimmigrant visa (of which a U visa is just one example). An inadmissible alien may, however, become eligible for some of these forms of relief if she successfully obtains a waiver of inadmissibility through one of the mechanisms found at 8 U.S.C. § 1182(d).
One section in particular is of interest here; it is always available for potential U Visa applicants in need of a waiver:
The Secretary of Homeland Security shall determine whether a ground of inadmissibility exists with respect to a nonimmigrant described in section 1101(a)(15)(U) of this title [governing U Visas]. The Secretary of Homeland Security, in the Attorney General's [ sic ] discretion, may waive the application of subsection (a) of this section... in the case of a nonimmigrant described in section 1101(a)(15)(U) of this title, if the Secretary of Homeland Security considers it to be in the public or national interest to do so.
8 U.S.C. § 1182(d)(14). Though the statute mentions the " Attorney General's discretion," this appears to be a codifier's error. Legislation amending the statute in 2006 replaced " Attorney General" with " Secretary of Homeland Security" everywhere it appeared in this section, and so the persistence of a reference to Attorney General is likely an inadvertent holdover from the original version of the U Visa statute. See Violence Against Women and Department of ...