SANCHEZ SOSA
25 I. & N. Dec. 807 (2012)
Rule of Law:
When an alien in removal proceedings requests a continuance to await the adjudication of a pending U nonimmigrant visa petition, an Immigration Judge must consider the Department of Homeland Security's position, the prima facie approvability of the U visa petition, and other procedural factors, with a rebuttable presumption that a prima facie approvable petition warrants a favorable exercise of discretion for a reasonable continuance.
Facts:
- Cezareo Sanchez Sosa (lead respondent), his wife, and two children are natives and citizens of Mexico.
- The respondents were served with a notice to appear for removal proceedings on April 10, 2002.
- The lead respondent had a U nonimmigrant visa petition, which included the other respondents as derivatives, pending with the United States Citizenship and Immigration Services (USCIS).
- At the time of the initial Immigration Court hearing in November 2005, the Department of Homeland Security (DHS) had not yet promulgated regulations implementing the U visa statute.
- Respondents' counsel stated at the November 2005 hearing that a U visa request had been recently submitted and they were awaiting a receipt.
- The respondents provided two Law Enforcement Certifications (from 2003 and 2005), a personal statement, and other materials related to criminal activity they experienced and their victimization.
- The Department of Homeland Security (DHS) currently opposes the continuance request, arguing insufficient documentary evidence of a pending application and failure to establish prima facie eligibility for the U visa.
Procedural Posture:
- Respondents (Cezareo Sanchez Sosa, his wife, and two children) were served with a notice to appear, initiating removal proceedings, on April 10, 2002.
- During their merits hearing on November 4, 2005, an Immigration Judge (IJ) denied their requests for a continuance or administrative closure to await adjudication of the lead respondent’s pending U nonimmigrant visa petition.
- The IJ issued an oral decision finding the respondents removable as charged and denying their applications for cancellation of removal.
- On July 12, 2007, the Board of Immigration Appeals (BIA) dismissed the respondents’ appeal and denied their motion to remand, affirming the IJ's denial of administrative closure and continuance.
- On August 13, 2007, the respondents, as petitioners, filed a petition for review of the BIA's decision with the Ninth Circuit Court of Appeals.
- On August 17, 2007, the respondents also filed a motion to reopen with the BIA, arguing eligibility for employment-based adjustment of status, which the BIA denied on November 8, 2007.
- On April 5, 2010, the Ninth Circuit Court of Appeals affirmed the BIA's denial of the respondents’ motion to remand to apply for adjustment of status, but found that the IJ abused his discretion in denying their motion to continue to pursue the U visa petition.
- The Ninth Circuit granted the petition for review in part and remanded the record to the BIA for further proceedings on the issue of the continuance for the U visa petition.
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Issue:
Is there good cause for an Immigration Judge to continue removal proceedings for an alien to await the adjudication of a pending U nonimmigrant visa petition, and what factors should the Immigration Judge consider in making that determination?
Opinions:
Majority - Greer, Board Member
Yes, an Immigration Judge should consider a specific set of factors to determine if good cause exists to continue removal proceedings for an alien pursuing a U nonimmigrant visa petition. Congress created the U visa through the Victims of Trafficking and Violence Protection Act of 2000 to protect victims of certain crimes who assist law enforcement, thereby strengthening law enforcement's ability to detect, investigate, and prosecute such offenses while offering humanitarian protection to victims. While the United States Citizenship and Immigration Services (USCIS) has exclusive jurisdiction over U visa petitions, Immigration Judges (IJs) retain broad discretionary authority to grant continuances for 'good cause shown' under 8 C.F.R. § 1003.29. To guide this discretion, the Board adapts factors from its previous decisions concerning family- and employment-based visas. The IJ should consider: (1) the Department of Homeland Security's (DHS) response to the motion, noting that if the DHS does not oppose, the proceedings ordinarily should be continued unless there are unusual, clearly identified reasons, and that unsupported opposition carries little weight; (2) whether the underlying visa petition is prima facie approvable, requiring an assessment of whether the alien suffered 'substantial physical or mental abuse' as a victim of a qualifying criminal activity, whether the alien has been or will be helpful to law enforcement (ordinarily requiring an approved Law Enforcement Certification, or LEC), and the likelihood of a waiver of inadmissibility if applicable; and (3) the reason for the continuance and other procedural factors, such as the submission of a completed application with supporting documents and proof of filing, and the history of continuances. An alien who has filed a prima facie approvable petition with USCIS will ordinarily warrant a favorable exercise of discretion for a continuance for a reasonable period. However, this presumption is rebuttable, and continuances should not be granted as a dilatory tactic if the alien is unlikely to be granted the U visa. The case is remanded to the Immigration Judge to apply these newly articulated factors, as this is a matter of first impression.
Analysis:
This decision provides a crucial and standardized framework for Immigration Judges and the Board of Immigration Appeals in evaluating continuance requests for U visa applicants, addressing an area where federal circuit courts have previously identified abuses of discretion. By establishing explicit factors and a rebuttable presumption, Matter of Sanchez Sosa aims to promote consistency in judicial decision-making, encourage timely adjudication of U visa petitions, and ensure that crime victims who cooperate with law enforcement are afforded a reasonable opportunity to pursue this form of relief. The case clarifies the jurisdictional interplay between IJs and USCIS regarding U visas, reinforcing the humanitarian and law enforcement objectives of the U visa program. Future cases will likely rely heavily on these factors, requiring applicants to present compelling evidence of prima facie eligibility and diligent pursuit of their U visa, while also necessitating the DHS to provide reasoned positions on continuance requests.
