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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-14569
________________________
Agency No. A072-385-439
FINEST MERIDOR,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(June 7, 2018)
Before WILSON, JORDAN and HIGGINBOTHAM, ∗ Circuit Judges.
WILSON, Circuit Judge:
∗
Honorable Patrick E. Higginbotham, United States Circuit Judge for the Fifth Circuit, sitting by
designation.
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Finest 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.
Because 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.
I.
Finest 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,
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and then boarded a military plane to Miami. Meridor applied for political asylum,
but he withdrew his application after it lingered for many years.
In 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.
After a 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 visa1 and therefore be able to stay in the United States.
Meridor applied for a U visa and for a waiver of inadmissibility2 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
1
A U visa is a nonimmigrant visa that is available to noncitizen victims of certain crimes to
encourage noncitizens to come forward and help law enforcement investigate and prosecute
criminal activity. To obtain a U visa, foreign nationals must establish that they have “suffered
substantial physical or mental abuse,” that they possess “information concerning criminal
activity,” and that they have been “helpful” to law enforcement in “investigating or prosecuting
criminal activity.” 8 U.S.C. § 1101(a)(15)(U).
2
A waiver of inadmissibility provides an individual subject to removal with the opportunity to
be admitted into the United States even though he would be disqualified for admission because
of one or more factors set forth in 8 U.S.C. § 1182(a).
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his removal order to Haiti. Meridor moved to terminate his removal proceedings,
and the IJ granted his motion.
While 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. 3 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.
Before 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.
Three 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
3
Because Meridor had convictions for dangerous crimes, he could not receive a waiver unless
his case presented “extraordinary circumstances.” 8 C.F.R. § 212.17(b)(2); In re Jean, 23 I. &
N. Dec. 373, 373 (U.S. Att’y Gen. 2002).
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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, 4 however, the IJ entered an order
removing Meridor to Haiti. 5
The 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 remain in
the United States did not outweigh his criminal history. The BIA, in turn, affirmed
the IJ’s order of removal.
4
USCIS has sole authority over whether to grant U visas. 8 C.F.R. § 214.14(c)(1).
5
After this, Meridor appealed the USCIS’s earlier denial of his U visa to its Administrative
Appeals Office (AAO). His appeal was dismissed in July 2016. First, it declined to recognize
the IJ’s waiver. It explained that L.D.G. did not control in Meridor’s case because he resides in
the Eleventh Circuit, not the Seventh Circuit. The AAO also stated that even if he resided in the
Seventh Circuit, it still would not abide by the IJ’s decision because the IJ waived Meridor’s
inadmissibility for certain reasons but not on all grounds that the USCIS denied him the waiver.
Second, the AAO declined to grant Meridor its own waiver.
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Meridor, proceeding pro se, petitioned us to review the BIA’s decision, and
submitted an emergency motion to stay his removal pending resolution of his case.
We denied his emergency motion. Meridor was removed to Haiti in February
2016, and in March 2016 we appointed him counsel.
Meanwhile, USCIS refused to reconsider its denial of Meridor’s first request
for a waiver, and it refused to accord the IJ’s decision any weight because the BIA
vacated her decision. USCIS also denied Meridor’s second request for a waiver,
filed in March 2015. Because it denied his waiver, it in turn denied his second U
visa application on the ground that Meridor was inadmissible.
II.
We review de novo issues concerning statutory interpretation of the
immigration code, Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001), but
if the statute is ambiguous or silent on the issue before us, we will defer to the
BIA’s interpretation if it is reasonable. Assa’ad v. U.S. Att’y Gen., 332 F.3d 1321,
1326 (11th Cir. 2003). We only review the BIA’s decision, except to the extent it
expressly adopts the IJ’s opinion. Al Najjar, 257 F.3d at 1284. The BIA errs if it
reviews an IJ’s factual and credibility determination for anything but clear error. 8
C.F.R. § 1003.1(d)(3)(i).
Under 8 U.S.C. § 1182(d)(3)(A), enacted in 1952, an otherwise inadmissible
foreign national “who is in possession of appropriate documents or is granted a
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waiver thereof and is seeking admission, may be admitted into the United States
temporarily as a nonimmigrant in the discretion of the Attorney General.” The
“Attorney General” includes his delegates, including, as is relevant here, IJs under
certain circumstances. See 8 C.F.R. § 1003.10(a) (explaining that IJs are
“attorneys whom the Attorney General appoints as administrative judges” that
“shall act as the Attorney General’s delegates in the cases that come before them”).
Separately, 8 U.S.C. § 1182(d)(14), enacted in 2000, provides that “[t]he
Secretary of Homeland Security, in the [Secretary’s 6] discretion, may waive
[inadmissibility]” for nonimmigrants seeking U visas. A U visa applicant cannot
appeal from a decision to deny a waiver requested under § 1182(d)(14). 8 C.F.R.
§ 212.17(b)(3).
“The judiciary is the final authority on issues of statutory construction,” but
“if the statute is silent or ambiguous with respect to the specific issue, the question
for the court is whether the agency’s answer is based on a permissible construction
6
In the Code, this reads “in the Attorney General’s discretion.” See 8 U.S.C. § 1182(d)(14).
This is likely a scrivener’s error; the Code should read “in the Secretary of Homeland Security’s
discretion.” The original provision read: “The Attorney General, in the Attorney General’s
discretion . . . .” See Victims of Trafficking and Violence Protection Act of 2000, Pub. L. 106-
386, § 1513(e), 114 Stat. 1464, 1536 (2000). In 2006, Congress made a technical amendment
striking “Attorney General” and replacing it with “Secretary of Homeland Security” in “each
place it appears” in subsections (13) and (14). See Violence Against Women and Department of
Justice Reauthorization Act of 2005, Pub. L. No. 109-162, § 802(b), 119 Stat. 2960, 3054 (2006).
The current, official version of the Code concurs that this is likely a scrivener’s error. See 8
U.S.C. § 1182(d)(14)(2012) (footnote 5).
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of the statute.” Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837,
843 & n.9, 104 S. Ct. 2778, 2781–82 & n.9 (1984).
III.
A.
As a threshold matter, we must explain why the BIA committed legal error
in making its alternative holding that even if the IJ had jurisdiction to grant
Meridor’s waiver of inadmissibility, Meridor was not entitled to one on the merits.
In the absence of legal error, the BIA’s alternative holding would decide this case
because its merits determination under a correct legal standard is not reviewable.
See Arias v. U.S. Att’y Gen., 482 F.3d 1281, 1283 (11th Cir. 2007) (per curiam)
(stating that under 8 U.S.C. § 1252(a)(2)(B)(ii) we lack jurisdiction to review
discretionary decisions of the Attorney General or DHS Secretary, including
denials of waivers of inadmissibility). We would issue an impermissible advisory
opinion if we opined on the IJ’s waiver of jurisdiction when the BIA provided
another ground that would resolve this case. See Malu v. U.S. Att’y Gen., 764 F.3d
1282, 1290–91 (11th Cir. 2014) (explaining that if the same judgment would be
rendered after we correct a court’s legal determination, our review amounts to
nothing more than an advisory opinion).
The BIA’s alternative holding cannot stand. The IJ found that Meridor’s
risk of harm had been “greatly diminished” because he had not been in trouble
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since 2008. 7 The risk of future harm is a factual finding. See Zhu v. Att’y Gen.,
703 F.3d 1303, 1310 (11th Cir. 2013). The reversal of that determination requires
a finding a clear error. See id. at 1315. But the BIA did not find clear error—it
simply disagreed and “was not persuaded.” The BIA mistakenly reviewed this
finding de novo rather than reviewing for clear error. Accordingly, the BIA’s
alternative holding fails, and we can therefore decide the IJ’s jurisdiction over
waivers of inadmissibility.
B.
We hold that the IJ had authority to grant Meridor a waiver under 8 U.S.C.
§ 1182(d)(3)(A). In so holding, we agree with the Seventh Circuit that “the plain
language of section 1182(d)(3)(A) grants to the Attorney General authority to
waive the inadmissibility of [an individual subject to removal] applying for a
temporary nonimmigrant visa,” and therefore “permits the Attorney General to
waive the inadmissibility of U Visa applicants.” L.D.G., 744 F.3d at 1030;
Carcieri v. Salazar, 555 U.S. 379, 387, 129 S. Ct. 1058, 1063–64 (2009) (noting
that courts must apply a statute according to its plain terms). In turn, an IJ has that
authority as the Attorney General’s delegate. See 8 C.F.R. § 1003.10(a).
7
When evaluating whether to grant a waiver of inadmissibility, courts must weigh the (1) “risk
of harm to society if the applicant is admitted,” (2) “seriousness of the applicant’s prior
immigration law, or criminal law, violations, if any,” and (3) “nature of the applicant’s reasons
for wishing to enter the United States.” Matter of Hranka, 16 I. & N. Dec. 491, 492 (BIA 1978).
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Keeping in mind that “when two statutes are capable of co-existence, it is
the duty of the courts, absent a clearly expressed constitutional intention to the
contrary, to regard each as effective,” Morton v. Mancari, 417 U.S. 535, 551, 94 S.
Ct. 2474, 2483 (1974), we further agree with the Seventh Circuit’s holding that
subsection (d)(14) coexists with subsection (d)(3). See L.D.G., 744 F.3d at 1030.
The mere 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 applicant
can obtain a waiver. Nothing in section 1182(d) says that it is, nor can
we find such language elsewhere in the statute . . . . Far from
repealing section 1182(d)(3)(A), the newer [§ 1182(d)(14)] was a
context-specific enhancement.
Id. at 1030–31. 8
The BIA did not address or analyze the plain language of § 1182(d)(3)
in making its ruling, which is the mandatory starting point in statutory
interpretation. See Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438, 119
S. Ct. 755, 760 (1999) (explaining that the analysis begins with the statute’s
language “[a]nd where the statutory language provides a clear answer, it
8
Having adopted the Seventh Circuit’s finding that the plain language of section 1182(d)(3)(A)
controls, we decline the Attorney General’s invitation to treat Matter of Khan, 26 I. & N. Dec.
797 (BIA 2016), as binding. We acknowledge that the BIA’s opinion in Khan and the Third
Circuit’s opinion in Sunday v. Atty. Gen., 832 F.3d 211 (3d Cir. 2016) are contrary to our
holding. However, we find Khan and Sunday unpersuasive for the reasons set forth in Baez-
Sanchez v. Sessions, 872 F.3d 854 (7th Cir. 2017). In Baez-Sanchez, the Seventh Circuit decided
not to follow Khan and Sunday because those cases did not identify any regulation that limits the
IJs’ authority to “act as the Attorney General’s delegates in the cases that come before them” set
out in 8 C.F.R. § 1003.10(a). 872 F.3d at 855–56. We agree with that holding.
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ends there as well.”). Rather, it concluded that because USCIS has sole
jurisdiction over U visas, and because in its view there is no regulation that
supports concurrent waiver of inadmissibility jurisdiction of IJs, IJs cannot
have concurrent jurisdiction. But as we explained, the plain language of
§ 1182(d)(3) gives IJs authority to grant waivers of inadmissibility.
Therefore, the BIA’s conclusion that the IJs do not have authority to grant
waivers of inadmissibility cannot stand.
IV.
Accordingly, we grant Meridor’s petition for review of the BIA’s final
removal order, vacate the order, and remand for further proceedings. On remand,
the BIA must reconsider Meridor’s final order of removal. It should (1) take into
account the fact that the IJ did have jurisdiction to grant Meridor a waiver of
inadmissibility; (2) she exercised her discretion to do so; and (3) the proper
standard of review for the IJ’s factual findings is clear error.
PETITION GRANTED. VACATED AND REMANDED.
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