In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13‐1011
L.D.G.,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney
General of the United States,
Respondent.
____________________
On Petition for Review of a Final Order of
the Board of Immigration Appeals.
____________________
ARGUED OCTOBER 29, 2013 — DECIDED MARCH 12, 2014
____________________
Before WOOD, Chief Judge, and KANNE and HAMILTON,
Circuit Judges.
WOOD, Chief Judge. This petition for review of a final or‐
der 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 stat‐
utory inadmissibility stemming from her uninspected entry
2 No. 13‐1011
and prior drug conviction. Facing certain removal, she asked
the Immigration Judge (IJ) presiding over her removal pro‐
ceedings 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 Im‐
migration Appeals affirmed. We must now decide whether
the IJ correctly declined jurisdiction, or if Congress has cre‐
ated concurrent jurisdiction under which both the Depart‐
ment of Justice and the Department of Homeland Security
may grant waivers of inadmissibility to U Visa applicants
who qualify for them.
I
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 statuto‐
rily designated crimes who have suffered “substantial phys‐
ical 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 victim‐
izers without fear of deportation. See New Classification for
Victims of Criminal Activity; Eligibility for “U” Nonimmi‐
grant 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 statu‐
torily committed to the discretion of the Secretary of Home‐
No. 13‐1011 3
land Security, see 8 U.S.C. § 1101(a)(15)(U), and is exercised
through USCIS, an office within the Department of Home‐
land 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 Re‐
lease, U.S. Citizenship & Immigration Services, USCIS Ap‐
proves 10,000 U Visas for 5th Straight Fiscal Year (Dec. 11,
2013), available at http://www.uscis.gov/news/alerts/uscis‐
approves‐10000‐u‐visas‐5th‐straight‐fiscal‐year. The allow‐
ance fills quickly: for fiscal year 2014, it was reached in De‐
cember 2013. Id.
Further complications arise for noncitizens who are in‐
admissible 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 inadmissibil‐
ity and removability. Removability is relatively straightfor‐
ward: 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 Of‐
fice for Immigration Review (EOIR), an arm of the Depart‐
ment of Justice (DOJ). The removal proceeding is first heard
by an IJ, with the possibility of appeal to the Board of Immi‐
gration 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 inde‐
pendently makes the order unreviewable. Inadmissibility is
slightly different, although the grounds for removability and
4 No. 13‐1011
inadmissibility generally overlap for noncitizens who en‐
tered without inspection. The statute defines as “inadmissi‐
ble” the classes of aliens who are ineligible for visas or ad‐
mission 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 de‐
termine whether a ground of inadmissibility
exists with respect to a nonimmigrant de‐
scribed in section 1101(a)(15)(U) of this title
[governing U Visas]. The Secretary of Home‐
land Security, in the Attorney General’s [sic]
discretion, may waive the application of sub‐
section (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 “At‐
torney General’s discretion,” this appears to be a codifier’s
error. Legislation amending the statute in 2006 replaced “At‐
torney General” with “Secretary of Homeland Security” eve‐
No. 13‐1011 5
rywhere 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 Justice Reau‐
thorization Act of 2005, Pub. L. No. 109‐162, 119 Stat. 2960
(Jan. 5, 2006).
When the U Visas were first created, discretion to grant
both the visas themselves and section 1182(d)(14) waivers of
inadmissibility was vested in the Attorney General. See Vic‐
tims of Trafficking and Violence Protection Act, 114 Stat.
1464. The passage of the statute, however, predated the crea‐
tion of the Department of Homeland Security. Primary re‐
sponsibility for granting and denying both the visas and
(d)(14) waivers was transferred to DHS in 2006, before any
visas were issued. See Emergency Supplemental Appropria‐
tions Act for Defense, The Global War on Terror, and Tsu‐
nami Relief, Pub. L. No. 109‐13, 119 Stat. 231 (May 11, 2005)
(section 1182(d) waivers); Violence Against Women and De‐
partment of Justice Reauthorization Act of 2005, Pub. L. No.
109‐162, 119 Stat. 2960 (Jan. 5, 2006) (U Visas). DHS regula‐
tions regarding the issuance of U Visas were completed in
2007, see 72 Fed. Reg. at 53014, and the first U Visa was is‐
sued in 2008, see USCIS News Release, supra.
Our description of the mechanics of obtaining a U Visa
up to this point is generally uncontested. The plot thickens,
however, when one realizes that there is a separate waiver
provision in 8 U.S.C. § 1182(d)(3)(A), which reads as follows:
[A]n alien … who is inadmissible under sub‐
section (a) of this section … but who is in pos‐
session of appropriate documents or is granted
a waiver thereof and is seeking admission, may
6 No. 13‐1011
be admitted to the United States temporarily as
a nonimmigrant in the discretion of the Attor‐
ney General.
This is the waiver provision that L.D.G. seeks to invoke.
Statutory references to the “Attorney General” include
the EOIR (where both the IJs and the Board reside), which is
a component of the Department of Justice. Cf., e.g., In re H‐N‐
, 22 I. & N. Dec. 1039, 1043 (B.I.A. 1999). We have interpreted
section 1182(d)(3)(A) to permit an IJ to waive inadmissibility
of a nonimmigrant. See, e.g., Atunnise v. Mukasey, 523 F.3d
830, 833 (7th Cir. 2008). L.D.G.’s petition requires us to de‐
cide whether the IJ retains that power when a noncitizen
seeks waiver of inadmissibility in order to obtain a U Visa,
despite the more targeted U Visa waiver provision in section
1182(d)(14). With that background in mind, we are ready to
turn to the facts of petitioner’s case.
II
L.D.G. and her husband entered the United States from
Mexico without inspection in 1987. They first settled in Cali‐
fornia, where they built a comfortable life and had four U.S.‐
citizen children. In 2005, the family moved to Illinois in or‐
der to support L.D.G.’s brother‐in‐law, who was struggling
with a drug problem. In January 2006, the family purchased
and began to operate a restaurant, which by all accounts did
fairly well during its first seven months.
The family members’ lives changed dramatically one day
in August 2006. A group of armed men entered the restau‐
rant and kidnapped L.D.G. and her family, along with one of
the restaurant’s employees and a customer. The assailants
were looking for L.D.G.’s brother‐in‐law. When the family
No. 13‐1011 7
could not provide information about his whereabouts, they
were bound and blindfolded, and threatened with death and
sexual assault. The hostages were taken to a private resi‐
dence in another town, where the kidnappers sexually as‐
saulted L.D.G’s teenage daughter and severely beat her hus‐
band. The family was rescued only when police officers ar‐
rived several hours later. L.D.G. and her family assisted po‐
lice in the subsequent investigation and prosecution of their
kidnappers.
The family was too frightened to return to the restaurant
business in the wake of these events. Lacking a stable source
of income, they fell on hard times. L.D.G.’s husband ulti‐
mately made the ill‐fated decision to enter the drug trade to
support the family, a fact L.D.G. maintains that she learned
only when police pulled her over in June 2007 and searched
her car for drugs. She later discovered that the police had
executed a search warrant on her home that same day and
found two kilograms of cocaine in the garage. She and her
husband were arrested and charged with possession of a
controlled substance with intent to deliver. L.D.G. maintains
her innocence to this day, but she accepted a plea deal carry‐
ing a sentence of probation and time served in order to re‐
turn to her children. Her husband was sentenced to five
years in state prison, where he remains incarcerated.
In November 2007, DHS initiated removal proceedings
against L.D.G. under 8 U.S.C. § 1182(a)(6)(A)(i), which
makes removable a noncitizen present in the United States
without having been admitted or paroled. She initially
sought and was granted a continuance of her immigration
case in order to pursue a U Visa. After receiving her applica‐
tion, USCIS identified additional reasons why she should be
8 No. 13‐1011
found inadmissible: her conviction of a crime involving
moral turpitude, 8 U.S.C. § 1182(a)(2)(A)(i)(I); her conviction
of a controlled substance crime, id. § 1182(a)(2)(A)(i)(II); and
her status as a person who “the Attorney General knows or
has reason to believe … is or has been an illicit trafficker in
any controlled substance,” id. § 1182(a)(2)(C). The agency
declined to waive her inadmissibility, and without a waiver
her U Visa application was denied as a matter of course.
USCIS reopened and reconsidered the waiver matter in May
2010 on L.D.G.’s motion, but it again denied the waiver that
September. L.D.G. then filed an administrative appeal (with‐
in DHS) of the decision, which was available to her under
the statute in place at the time; that appeal is still pending.
Meanwhile, L.D.G.’s immigration proceedings—which
were continued four times while she pursued the waiver
from USCIS—resumed in the immigration court after USCIS
issued its final denial in September 2010. Her removal hear‐
ing took place on March 30, 2011. There she conceded that
she was removable and ineligible for cancellation of that re‐
moval. See 8 U.S.C. § 1229b. She urged the IJ, however, to
consider anew her application for a waiver of inadmissibility
so that she could continue her pursuit of a U Visa. She ar‐
gued that the IJ had independent and concurrent jurisdiction
to grant such a waiver under 8 U.S.C. § 1182(d)(3)(A), and
that such jurisdiction was unaffected by USCIS’s recent de‐
nial of her waiver application under section 1182(d)(14). She
also clarified that she was not asking for a direct review of
her U Visa application itself, but only the waiver application.
The IJ found that he lacked jurisdiction to grant this re‐
lief. He looked first to the DHS regulations governing U Vi‐
sas, in particular 8 C.F.R. § 214.14(c)(1), which states, “USCIS
No. 13‐1011 9
has sole jurisdiction over all petitions for U nonimmigrant
status.” He also noted that the regulation establishing
USCIS’s procedure for handling waiver applications, 8
C.F.R. § 212.17, placed the granting of waivers within
USCIS’s discretion. See id. § 212.17(b). He concluded that the
Illegal Immigration Reform and Immigrant Responsibilities
Act of September 30, 1996, “specifically eliminate[d] the Im‐
migration Court jurisdiction over non‐immigrant admissions
and aliens seeking Section 212(d)(3) [8 U.S.C. § 1182(d)(3)]
waivers.”
The Board adopted the IJ’s reasoning and affirmed on
appeal. It found the matter controlled by 8 C.F.R. § 212.17,
which it read as “specify[ing] that a waiver in conjunction
with a U visa is exclusively within the jurisdiction of the De‐
partment of Homeland Security.” Believing that L.D.G. was
applying for a retroactive waiver because it was her illegal
entry that led to inadmissibility, the Board relied on this
court’s holding in Borrego v. Mukasey, 539 F.3d 689, 693 (7th
Cir. 2008), to the effect that a waiver under section 1182(d)(3)
cannot be granted retroactively in immigration proceedings.
Noting that L.D.G. was not denied an initial opportunity to
seek a waiver under section 1182(d)(14) from USCIS, the
Board concluded that the IJ was without jurisdiction and
dismissed the appeal. L.D.G. then filed this timely petition
for review. See 8 U.S.C. § 1252.
III
Though we do not have jurisdiction to review discretion‐
ary decisions of the Attorney General or the Secretary of
Homeland Security, 8 U.S.C. § 1252(a)(2)(B)(ii), we do have
jurisdiction over questions of law raised in a petition for re‐
view, see id. § 1252(a)(2)(D). We review de novo the Board’s
10 No. 13‐1011
legal conclusions, as well as those of the IJ insofar as the
Board adopted them. Kiorkis v. Holder, 634 F.3d 924, 928 (7th
Cir. 2011).
Before turning to the main event, we must take care of a
preliminary matter: the Board’s impression that L.D.G. was
pursuing a retroactive waiver under section 1182(d)(3). That
is not correct. The relief she seeks is entirely forward‐
looking. The comparison to Borrego is therefore inapposite,
although contrasting the cases is useful for illustrating the
Board’s error. In Borrego, the petitioner on an earlier occasion
had been caught using a fake name at the border while at‐
tempting to enter the United States, and as a result she was
barred from entering the country for five years. 539 F.3d at
689–90. Despite the bar, she successfully obtained a B‐2
(tourist) visa in her own name less than four years later.
When she was found out and put in removal proceedings,
she sought a retroactive waiver under section 1182(d)(3)(A)
in order to seek an adjustment of status. Id. at 691. Her B‐2
visa was facially invalid; it could be revived only if her in‐
admissibility was waived retroactively, which would have
made her eligible to receive the visa four years earlier.
L.D.G.’s situation is quite different. Unlike the petitioner
in Borrego, L.D.G. does not yet have a visa. She seeks waiver
of her grounds for inadmissibility only to gain eligibility for
a U Visa in the future. Waivers of inadmissibility necessarily
relieve applicants of the effects of past conduct, but this does
not make the waivers themselves retroactive. A waiver is
retroactive when it works to salvage relief previously grant‐
ed for which the applicant was not qualified, and thus was
void from the outset. L.D.G., by contrast, has not obtained
any relief at all. She is seeking a waiver of inadmissibility in
No. 13‐1011 11
order to qualify for a new U Visa. Borrego presents no barrier
to the IJ’s providing this relief.
With that settled, we turn to the central question present‐
ed: whether the IJ had jurisdiction to consider a waiver un‐
der section 1182(d)(3)(A).
IV
For all of the complexities of immigration statutes, the
decisions of the immigration courts are administrative deci‐
sions, and the government suggests our analysis would be
aided by applying well‐settled administrative law principles.
The government sees this as an appropriate case for the con‐
siderable deference owed to agencies’ interpretations of their
own regulations called for by Auer v. Robbins, 519 U.S. 452,
461 (1997). It argues that the Board’s determination that
USCIS had exclusive jurisdiction to consider waivers of in‐
admissibility predicate to U Visas was just an interpretation
of the U Visa regulation found at 8 C.F.R. §§ 214.14, 212.17. If
the government were correct, the Board’s interpretation
would be controlling unless it was “plainly erroneous or in‐
consistent with the regulation.” Auer, 519 U.S. at 461 (quot‐
ing Robertson v. Methow Valley Citizens Council, 490 U.S. 332,
359 (1989)).
But the government’s argument slides past some im‐
portant details, which taken together make the Board’s in‐
terpretation a poor candidate for Auer deference twice over.
First, the most basic requirement—that the agency be inter‐
preting its own (ambiguous) regulation—is missing here. See
Christopher v. Smithkline Beecham Corp., 132 S. Ct. 2156, 2166
(2012). Sections 214.14 and 212.17 were promulgated by
DHS. The Board is part of DOJ. There is no rule, in Auer or
12 No. 13‐1011
elsewhere, that encourages or compels courts to defer to an
agency’s interpretation of a different agency’s regulations,
and we decline to invent one here.
Second, even if deference extended to sister agencies, it is
due only if an interpretation is not plainly erroneous or in‐
consistent with the regulation. Interpretations that are flatly
at odds with the language of a regulation cannot be fol‐
lowed, because “an agency cannot by regulation contradict a
statute, but only supplement it.” Keys v. Barnhart, 347 F.3d
990, 993 (7th Cir. 2003). Moreover, flat contradiction is not
the only way in which an inconsistency can arise. Interpreta‐
tions can also be objectionable if they unduly restrict the
plain language set forth in the regulation, see Joseph v. Hold‐
er, 579 F.3d 827, 833–34 (7th Cir. 2009), or because the agen‐
cy’s stated position is not in fact an “interpretation” of the
regulation at all. The latter is the case here: the regulations at
issue (8 C.F.R. §§ 214.14, 212.17) are silent on the question
whether USCIS’s jurisdiction over waivers of inadmissibility
predicate to U Visas is or is not exclusive. The regulations
give USCIS sole jurisdiction to provide U Visas themselves, 8
C.F.R. § 214.14(c)(1), but that is neither important here nor a
surprise: that exclusivity is mandated by 8 U.S.C.
§ 1101(a)(15)(U), and is a separate matter from jurisdiction
over waivers of inadmissibility. The regulations also estab‐
lish the procedures by which an applicant must submit a
waiver petition, 8 C.F.R. § 212.17, and the requirements for
obtaining a visa, 8 C.F.R. § 214.14(c). We have no reason to
question the validity of these provisions, but again, they
have nothing to do with whether the IJ may grant a waiver
of inadmissibility under section 1182(d)(3)(A) that would
allow a petitioner to obtain a U Visa. To be consistent with
the regulation, an agency’s “interpretation” must actually
No. 13‐1011 13
construe provisions of that regulation; it is not enough to
identify a regulation that addresses an associated matter and
tack on requirements that are conjured from thin air. Other‐
wise Auer deference would be a means for agencies to ac‐
complish an end‐run around notice‐and‐comment rulemak‐
ing by calling their new rules “interpretations” of old ones.
The deference owed to the Board’s interpretation of the
relevant regulations may be unimportant in any event. Any
interpretation would still need to be consistent with the stat‐
ute. From that point of view, we might consider whether the
DHS regulations, as interpreted by the Board, are entitled to
deference under Chevron U.S.A., Inc. v. Natural Resources De‐
fense Council, Inc., 467 U.S. 837 (1984). The first question
would be whether Congress had unambiguously expressed
its intent on the matter. If the answer were yes, that would
be the end of things. If it were no, the next question would
be whether the agency’s construction is a permissible inter‐
pretation of the statute. Id. at 842–43. We need not pursue
this further, however, because DHS has no authority to
promulgate a regulation purporting to define the IJ’s juris‐
diction. More generally, there is nothing in either 8 U.S.C.
§ 1101(a)(15)(U) or § 1182(d) to suggest Congress intended to
delegate to DHS the authority to determine which agency is
empowered to consider waivers of inadmissibility necessary
for different forms of immigration relief. Any attempt to
read such a delegation into Congress’s silence would fail for
want of an intelligible principle to guide the agency’s discre‐
tion. See, e.g., Loving v. United States, 517 U.S. 748, 771 (1996).
Accordingly, if DHS has exclusive jurisdiction over waivers
of inadmissibility for U Visa applicants, that exclusivity
must flow directly from statute, rather than from any regula‐
tion DHS has issued.
14 No. 13‐1011
V
We are left, therefore, with a purely legal question: is the
authority given to DHS (and exercised by USCIS) in 8 U.S.C.
§ 1182(d)(14) the exclusive path for waivers of inadmissibil‐
ity for U Visa applicants? If so, then the case is over, because
it is plain that the waiver power in section 1182(d)(14) can be
exercised only by DHS. That subsection gives the Secretary
of Homeland Security authority to waive most statutory
grounds for inadmissibility for U Visa applicants “if the Sec‐
retary … considers it to be in the public or national interest
to do so.” 8 U.S.C. § 1182(d)(14). But the fact that only DHS
may grant waivers under section 1182(d)(14) does not tell us
whether that provision is the only means by which an appli‐
cant can obtain a waiver. Nothing in section 1182(d) says
that it is, nor can we find such language elsewhere in the
statute.
Instead, we see that the plain language of section
1182(d)(3)(A) grants to the Attorney General authority to
waive the inadmissibility of “an alien” applying for a tempo‐
rary nonimmigrant visa, subject only to explicit exceptions
that do not apply here (e.g., espionage, attempted overthrow
of the government, potentially serious adverse foreign policy
consequences, and participation in genocide). Conspicuously
missing from the list of exceptions is the situation now be‐
fore us. We are not free to write in a limitation on the Attor‐
ney General’s powers that Congress did not impose. We
thus conclude that section 1182(d)(3)(A) permits the Attor‐
ney General to waive the inadmissibility of U Visa appli‐
cants like L.D.G.
If the Attorney General were divested of that power to
waive in U Visa cases, it could only be because section
No. 13‐1011 15
1182(d)(14) effected a partial implied repeal of his power
under subsection (d)(3)(A). Recall that when section
1182(d)(14) was added to the U.S. Code in 2000, it gave all
discretion to waive inadmissibility to the Attorney General.
The coexistence of the prior version of section 1182(d)(14)
with section 1182(d)(3)(A) creates some awkwardness. If we
accept that waivers of inadmissibility for U Visa applicants
were available under 1182(d)(3)(A) from the start, then we
risk calling 1182(d)(14) redundant, which is an outcome we
strive to avoid when interpreting statutes. See, e.g., In re Mer‐
chants Grain, Inc., 93 F.3d 1347, 1353–54 (7th Cir. 1996). Con‐
versely, if we find that section 1182(d)(14) imposes a re‐
striction on the Attorney General’s otherwise facially valid
power to grant such waivers under section 1182(d)(3)(A), we
would be recognizing a partial implied repeal of the authori‐
ty granted by the latter section. This creates its own prob‐
lems, given the presumption against such repeals and the
fact that the later statute does not meet the usual require‐
ments for an implied repeal, such as an irreconcilable con‐
flict or an effort to cover the whole of the subject matter of
the former statute and act as a clear substitute. See Carcieri v.
Salazar, 555 U.S. 379, 395 (2009).
Upon closer examination of section 1182(d)(14), we con‐
clude that the redundancy problem is not so stark after all.
From the time it was first passed and continuing to the pre‐
sent day, section 1182(d)(14) has given the identified de‐
partment head (whether the Attorney General or the Secre‐
tary of Homeland Security) the discretionary power to waive
grounds for inadmissibility found anywhere in the statute
“other than paragraph [a](3)(E).” 8 U.S.C. § 1182(d)(14). This
power is more expansive than the Attorney General’s waiver
authority under section 1182(d)(3)(A), which is not available
16 No. 13‐1011
for aliens inadmissible under paragraphs (a)(3)(A)(i)(I),
(a)(3)(A)(ii), (a)(3)(A)(iii), and (a)(3)(C), as well as those in‐
admissible under (a)(3)(E). Accordingly, subsection (d)(14)
was necessary and not redundant insofar as it created an
even greater power to grant a waiver of inadmissibility for
purposes of a U Visa than was available in the preexisting
catch‐all provision. Far from repealing section 1182(d)(3)(A),
the newer provision was a context‐specific enhancement.
The only other way section 1182(d)(14) could preclude
the Attorney General from granting a waiver of inadmissi‐
bility to a U Visa applicant is if Congress impliedly repealed
that power when it amended the statute to transfer discre‐
tion to the Secretary of Homeland Security. But this amend‐
ment does not provide the basis for a finding of implied re‐
peal. “[A]bsent a clearly expressed congressional intention,
… [a]n implied repeal will only be found where provisions
in two statutes are in irreconcilable conflict, or where the lat‐
ter Act covers the whole subject of the earlier one and is
clearly intended as a substitute.” Carcieri, 555 U.S. at 395
(second alteration in original) (internal quotation marks
omitted). Here, in the face of silence by Congress, we have
two statutory provisions that are capable of coexistence if
they are understood to provide dual tracks for a waiver de‐
termination. The later‐enacted law (1182(d)(14)) does not
cover the whole subject matter of the former (1182(d)(3)(A)).
In fact, it was originally offered as a supplement; it would be
odd now to find it a substitute for the blanket waiver provi‐
sion. In the absence of a clear indication by Congress to the
contrary, we find that section 1182(d)(14) and section
1182(d)(3)(A) waivers can and do coexist, and that the IJ has
jurisdiction to grant a waiver of inadmissibility to a U Visa
applicant under section 1182(d)(3)(A).
No. 13‐1011 17
This is the best we can make of an ambiguous statutory
scheme. We are encouraged, however, by the fact that there
is reason to believe that Congress intended this result.
Though petitioner is seeking only a U Visa, many nonciti‐
zens placed in removal proceedings will apply for a variety
of forms of relief from removal. For example, K‐1 and K‐2
visas allow the fiancés of U.S. citizens and their children to
remain in the United States temporarily in order to marry as
planned; K‐3 and K‐4 visas provide the same right to noncit‐
izen spouses awaiting permanent resident status. See 8
U.S.C. §§ 1184(d), 1184(r). This court has considered and ap‐
proved the use of waivers of inadmissibility under section
1182(d)(3) by a noncitizen in removal proceedings in order
to obtain a K‐3 visa. See Atunnise v. Mukasey, 523 F.3d 830,
837–38 (7th Cir. 2008). Other avenues of relief from removal,
such as Temporary Protected Status under 8 U.S.C. § 1254a
or withholding of removal under the Convention Against
Torture, see 8 C.F.R. § 208.16(c), also require an otherwise
inadmissible noncitizen to obtain a waiver before relief can
be granted. See 8 U.S.C. § 1254a(c)(2).
With so many avenues of relief available and all of them
requiring waivers of inadmissibility, allowing the IJ to make
a global resolution of waiver requests under section
1182(d)(3) offers efficiency advantages over compartmental‐
izing waiver decisions whenever a statute gives a second
agency more targeted waiver authority. Efficiency is no
small consideration in an administrative system as back‐
logged as the U.S. immigration bureaucracy has been.
Noncitizens who ultimately were granted relief waited an
average of 898 days nationwide for their immigration cases
to reach an outcome as of October 2013. See Wait for Immigra‐
tion Relief Longest in Nebraska, Oregon, Illinois Courts,
18 No. 13‐1011
TRANSACTIONAL RECORDS ACCESS CLEARINGHOUSE (Nov. 12,
2013), http://trac.syr.edu/whatsnew/email.131112.html (last
visited Mar. 12, 2014). This number jumps to 1149 days in
Illinois, where L.D.G.’s case was heard. Id. And the backlog
shows no signs of abating; nationally, the average waiting
period has increased 37% over the last five years, from 657
days in fiscal year 2009. Id.
Two potential scenarios can arise when the IJ is asked to
make a global waiver determination under section
1182(d)(3). If the IJ grants a waiver of inadmissibility, the
noncitizen can directly seek the relevant relief (such as a
nonimmigrant visa) from the appropriate agency without
going through whatever waiver process the agency affords.
Alternatively, if the IJ denies a waiver, the noncitizen can
still seek a waiver from the relevant agency if a statute pro‐
vides for it. Either way, relatively little time is lost. The IJ
will become familiar with the facts necessary to make a
waiver determination as part of the adjudication of the over‐
all removal proceeding. Concurrent jurisdiction over U Visa
waivers, shared by DOJ and DHS, thus has its advantages
for the administration of the immigration system when
compared to the possibility of exclusive USCIS jurisdiction.
Finally, it is important to recall that in the final analysis,
even if a waiver is granted USCIS retains the authority to
grant or to deny the U Visa itself.
A procedure under which the applicant obtains a waiver
of inadmissibility from one agency in order to obtain a visa
from another agency is neither unprecedented nor unique.
For example, USCIS is responsible for granting the K‐series
visas available to noncitizen fiancés and spouses of U.S. citi‐
zens, but waivers of inadmissibility in order to obtain these
No. 13‐1011 19
visas can be granted by the IJ under section 1182(d)(3). See
Atunnise, 523 F.3d at 836–37. Indeed, we cannot find any
provision under which IJs themselves grant visas; a waiver
of inadmissibility by an IJ is always used to clear the way for
another department to grant the visa. To find the IJ did not
have jurisdiction to consider a waiver in the U Visa context
under section 1182(d)(3) because the visa itself had to be
granted by a different agency would create a needless incon‐
sistency between U Visas and all others.
Our decision today comports with the “longstanding
principle of construing any lingering ambiguities in deporta‐
tion statutes in favor of the alien.” I.N.S. v. Cardoza‐Fonseca,
480 U.S. 421, 449 (1987). We express no opinion on the merits
of petitioner’s waiver claim, or the significance of the fact
that USCIS has been conducting parallel proceedings that (to
our knowledge) have not yet been resolved on appeal. We
hold only that the Board was incorrect to hold that the IJ
lacked jurisdiction to consider L.D.G’s waiver request. We
therefore GRANT the petition for review and VACATE the IJ’s
order of removal. We send petitioner’s case back to the IJ
with instructions to consider petitioner’s waiver request un‐
der 8 U.S.C. § 1182(d)(3)(A).