Petition for Review of a Decision of the Board of Immigration
Appeals Agency No. A072-385-439
WILSON, JORDAN and HIGGINBOTHAM, [*] Circuit Judges.
WILSON, CIRCUIT JUDGE.
Meridor, a native and citizen of Haiti, seeks review of the
Board of Immigration Appeals' (BIA) final order of
removal. That order vacated the order of an immigration judge
(IJ), which had granted Meridor a waiver of inadmissibility
in his pursuit of a U visa. The BIA found that IJs did not
have authority to grant such a waiver, and, even if they did,
on the merits Meridor was not entitled to one. On appeal,
Meridor argues that the plain language of 8 U.S.C. §
1182(d)(3)(A) gives IJs authority to grant waivers of
inadmissibility. Meridor further argues that the BIA engaged
in legal error in reaching its alternative holding that he
did not merit a waiver.
the plain language of § 1182(d)(3)(A) does grant
authority to IJs to issue waivers of inadmissibility, and
because the BIA committed legal error in reaching its
alternative holding on the merits, we grant the petition to
review the final removal order, vacate it, and remand for
further proceedings. On remand, the BIA must reconsider its
final order of removal, the IJ's grant of a waiver of
inadmissibility to Meridor pursuant to this plain language
and the prohibition on de novo fact finding in its review of
the IJ's opinion.
Meridor arrived in the United States about 25 years ago as a
political refugee from Haiti. Meridor and his sister fled
Haiti for Guantanamo Bay, Cuba, and then boarded a military
plane to Miami. Meridor applied for political asylum, but he
withdrew his application after it lingered for many years.
January 2013, the Department of Homeland Security (DHS)
notified Meridor that he was subject to removal because he
was a foreign national without a valid visa or passport, and
because he had convictions for a crime of moral turpitude and
controlled-substance offenses. DHS took him into custody
pending his deportation hearing. Meridor applied for asylum
and for withholding of removal while his case was pending.
hearing, an IJ agreed that Meridor was removable due to his
prior convictions. The IJ also denied Meridor's request
for asylum and for withholding of removal. Meridor moved for
reconsideration, but before the IJ ruled on his motion,
Meridor retained new counsel who believed that Meridor might
be able to qualify for a U visa and therefore be able to stay in
the United States.
applied for a U visa and for a waiver of
inadmissibility with DHS's component agency, U.S.
Citizenship and Immigration Services (USCIS). The IJ formally
reopened Meridor's file in light of his U visa
application, which nullified his removal order to Haiti.
Meridor moved to terminate his removal proceedings, and the
IJ granted his motion.
Meridor's applications for the U visa and waiver were
pending with USCIS, the IJ agreed to consider the merits of
the waiver application. The IJ, acting as the Attorney
General's delegate, stated that she had jurisdiction over
the waiver application. She explained that Meridor's case
was "extraordinary, " and she therefore had
discretion to grant him a waiver of
inadmissibility. At a hearing, the IJ told Meridor that she
would grant him a waiver of inadmissibility, and that she
would do so in a written decision.
the IJ could issue a written opinion on the waiver, USCIS
denied Meridor's applications for a U visa and waiver of
inadmissibility. USCIS noted in its denial letter that
Meridor was not admissible into the United States, even
though if he were, he appeared to meet all of the other U
visa eligibility criteria. USCIS further noted that it would
not exercise its discretion to approve his waiver as a matter
of national or public interest, and that he could not appeal
the waiver decision.
weeks later, in February 2015, the IJ issued a written
decision granting the waiver, finding that Meridor's
criminal history and his risk of harm if admitted were
outweighed by his reasons for wanting to remain in the United
States. She explained that Meridor wants to stay in the
United States to support his family, and that his removal
would result in extraordinary hardship to them. She also
cited L.D.G. v. Holder, 744 F.3d 1022 (7th Cir.
2014), in concluding that she had authority to grant the
waiver pursuant to § 1182(d)(3)(A). The IJ also noted
that USCIS had authority to grant the waiver as well,
pursuant to § 1182(d)(14). Because she had no authority
to grant the U visa,  however, the IJ entered an order removing
Meridor to Haiti.
BIA, without distinguishing L.D.G., reversed the
IJ's decision to grant the waiver, holding that DHS-and
only DHS-can grant waivers of inadmissibility for U visa
applications. It alternatively held that even if the IJ had
jurisdiction to grant the waiver, Meridor did not merit such
a waiver. The BIA explained that it disagreed with the
IJ's finding that Meridor's risk of harm was
"greatly diminished, " and stated that
Meridor's reasons for wanting to ...