Granados Benitez v. Wilkinson

United States Court of Appeals
For the First Circuit

No. 20-1541

CARLOS ANTONIO GRANADOS BENITEZ,

Petitioner,

v.

ROBERT M. WILKINSON, Acting United States Attorney General,*

Respondent.

PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS

Before

Lynch and Selya, Circuit Judges,
and Laplante,** District Judge.

Paige Austin, with whom Philip L. Torrey, Make the Road New
York, and the Harvard Law School Crimmigration Clinic were on
brief, for petitioner.
Brian D. Straw, Gregory E. Ostfeld, and Greenberg Traurig,
LLP on brief for ASISTA Immigration Assistance, Asian Pacific
Institute on Gender-Based Violence, National Coalition Against
Domestic Violence, National Network to End Domestic Violence, Safe
Horizon, and Tahirih Justice Center, amici curiae.
Christopher Bates, with whom Jeffrey Bossert Clark, Acting
Assistant Attorney General, Linda S. Wernery, Assistant Director,
and William C. Minick, Attorney, Office of Immigration Litigation,

* Pursuant to Fed. R. of App. P. 43(c)(2), Acting Attorney
General Robert M. Wilkinson has been substituted for former
Attorney General William P. Barr.
** Of the District of New Hampshire, sitting by designation.
U.S. Department of Justice, were on brief, for respondent.

January 28, 2021

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 LYNCH, Circuit Judge. Petitioner Carlos Antonio

Granados Benitez seeks review of the Board of Immigration Appeals'

("BIA" or "Board") denial of his motion to reopen his removal

proceedings and to remand to the immigration judge ("IJ") for

further consideration in light of the fact that he had been placed

on a waiting list by United States Citizenship and Immigration

Services ("USCIS") for a U-1 nonimmigrant visa ("U visa") pursuant

to the Victims of Trafficking and Violence Protection Act

("VTVPA"), Pub. L. No. 106-386, § 1513(a)(2)(A), (b), 114 Stat.

1464 (2000) (codified as amended at 8 U.S.C. § 1101(a)(15)(U)).

Because we find that the BIA abused its discretion, in that it

failed to render a reasoned decision that accords with its own

precedent and policies, and it further failed to consider the

position of its sister agency Immigration and Customs Enforcement

("ICE"), we grant the petition. In so holding we join the views

of the Seventh Circuit in Guerra Rocha v. Barr, 951 F.3d 848, 852-

54 (7th Cir. 2020).

I.

Granados Benitez is a citizen of Honduras who entered

the United States in 2010 without being lawfully admitted or

paroled. His wife and five-year-old daughter are US citizens.

Granados Benitez says his wife suffers from a medical condition

which prevents her from working and so he was the sole source of

income for his family at least until his detention. In a letter,

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Granados Benitez's employer described him as "essential for the

daily functioning" of the restaurant where he worked. His

daughter's daycare also submitted a letter recounting the positive

relationship Granados Benitez has with his daughter. St. Mary of

the Isle Catholic Church submitted a letter confirming that

Granados Benitez is a parishioner. The IJ credited Granados

Benitez's testimony that he left Honduras to avoid pressure to

participate in drug-trafficking activity, in part because of his

strong religious convictions.1

On November 29, 2018, the Department of Homeland

Security ("DHS") issued Granados Benitez a Notice to Appear,

charging him with removability for being present in the United

States without being lawfully admitted or paroled. DHS began

removal proceedings against him on December 6, 2018. Granados

Benitez admitted the factual allegations in the Notice to Appear,

but applied for asylum and protection under the Convention Against

Torture.2 The IJ found his claims credible, but nonetheless

1 We acknowledge and thank the amici curiae for their
helpful joint submission in this matter.

2 To qualify for asylum, the petitioner "must demonstrate
either past persecution or a well-founded fear of future
persecution 'on account of race, religion, nationality, membership
in a particular social group, or political opinion.'" Villa-
Londono v. Holder, 600 F.3d 21, 24 (1st Cir. 2010) (quoting Seng
v. Holder, 584 F.3d 13, 18 (1st Cir. 2009), superseded in part by
statute, REAL ID Act, Pub. L. No. 109-13, § 101(a)(3), 119 Stat.
302, 303 (2005), as recognized in Ahmed v. Holder, 765 F.3d 96, 99
(1st Cir. 2014)). Granados Benitez claimed past persecution on

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ordered his removal on May 15, 2019, because his allegations of

mistreatment in Honduras did not rise to the level of past

persecution, and Granados Benitez had not shown they were

perpetrated on the basis of his protected characteristics. On

June 6, 2019, Granados Benitez appealed the removal order to the

BIA. The BIA dismissed his appeal on October 17, 2019.

While Granados Benitez's removal proceedings were

ongoing, he filed a separate application to USCIS for a U visa.3

To promote greater cooperation with law enforcement,

Congress passed the VTVPA, which permits USCIS to issue up to

10,000 U visas each fiscal year to aliens without legal status who

are victims of a qualifying crime and substantially assist law

enforcement in the investigation and prosecution of the offense.

two protected grounds: (1) his Catholicism, and (2) his family
unit. He said he had been repeatedly pressured by relatives and
others to join narco-trafficking activities, which his religious
beliefs prevented him from doing. He testified to the IJ that
when he was fourteen, police officers associated with drug
traffickers had beaten him with the butt of a rifle for refusing
to transport drugs and that he had been hospitalized as a result
of his injuries. On other occasions his cousins had mocked him
for refusing to participate in drug-trafficking activities.
3 Separately, Granados Benitez's wife filed an I-130
immediate relative petition, which permits "certain relatives of
United States citizens to obtain lawful permanent resident ('LPR')
status based on a family relationship." Neang Chea Taing v.
Napolitano, 567 F.3d 19, 21 (1st Cir. 2009) (citing 8 U.S.C.
§ 1151(a)(1)). Granados Benitez raised this pending petition in
his motion to reopen and remand before the BIA, but he does not
seek review of the portion of the BIA's decision discussing the I-
130 petition.

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VPTA, Pub. L. No. 106-386, § 1513(a)(2)(A), (b), 114 Stat. 1464,

1533 (2000) (codified as amended at 8 U.S.C. § 1101(a)(15)(U)).

The Secretary of Homeland Security must determine that: (1) "[the

visa applicant] has suffered substantial physical or mental abuse

as a result of having been a victim of criminal activity described

[elsewhere in the statute]"; (2) "[he or she] . . . possesses

information concerning criminal activity described [elsewhere in

the statute]"; (3) "[he or she] . . . has been helpful, is being

helpful, or is likely to be helpful . . . [in the] investigati[on]

or prosecuti[on of] criminal activity described [elsewhere in the

statute]"; and (4) "the criminal activity described [elsewhere in

the statute] violated the laws of the United States or occurred in

the United States . . . or the territories and possessions of the

United States." 8 U.S.C. § 1101(a)(15)(U)(i).

Because of the statutory cap, many people who are

otherwise eligible to receive a U visa in a given fiscal year are

unable to do so. 8 U.S.C. § 1184(p)(2). USCIS reports, for

example, that:

At the end of 2019, there were nearly 152,000
pending principal [U visa] petitions and
nearly 104,000 pending petitions for family
members. Because the number of individuals
issued principal [U visas] or provided
principal U-1 nonimmigrant status in any
fiscal year cannot exceed 10,000, the wait
time for a principal petitioner to receive a
final decision (and status, if approved) is
currently 5-10 years . . . .

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USCIS, U Visa Filing Trends: Analysis of Data through FY 2019,

3 (2020) (footnote omitted), https://www.uscis.gov/sites/default/files

/document/reports/Mini_U_Report-Filing_Trends_508.pdf. USCIS will add

people who are unable to receive a U visa solely because of the

statutory cap to a waitlist, and will defer removal proceedings

for those individuals. USCIS, Adjudicator's Field

Manual ("Field Manual") § 39.1(d)(2) (2008), https://www.uscis.gov/s

ites/default/files/document/policy-manual-afm/afm39-external.pdf.4

On June 12, 2017, Granados Benitez was the victim of an

armed robbery near his home in Island Park, New York.5 As defined

by New York law, armed robbery is a qualifying offense under the

VTVPA. See 8 U.S.C. § 1101(a)(15)(U)(iii); N.Y. Penal Law §

120.00(1) (McKinney); see also id. § 10.00(9). Granados Benitez

cooperated with law enforcement and assisted with the prosecution

of his attackers. The Nassau County Police Department submitted

a certification attesting to his cooperation in the investigation

and prosecution of his attack, and on July 19, 2019, shortly after

4 USCIS is retiring the Adjudicator's Field Manual and
replacing it with the USCIS Policy Manual. But this portion of
the Field Manual remains in effect, and was in effect at all times
relevant here. See Field Manual § 39.
5 Granados Benitez lives with his family in Island Park,
New York, but he was transferred to the Plymouth County House of
Corrections in Massachusetts, and his claims were adjudicated by
an IJ in Massachusetts, so venue is appropriate in this circuit.
8 U.S.C. § 1252(b)(2).

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receiving the certification, Granados Benitez filed a petition for

U nonimmigrant status with USCIS.

On September 23, 2019, USCIS sent Granados Benitez a

letter stating:

At this time, the evidence submitted with your
petition appears to demonstrate that you have
established the eligibility requirements for
U nonimmigrant status. However, the statutory
cap for U-1 nonimmigrant status has been
reached for this fiscal year. . . . As the
fiscal year limit is the sole reason you
cannot be granted U-1 nonimmigrant status,
your petition is being placed on a waiting
list. (Emphasis added.)

USCIS also granted Granados Benitez deferred action, meaning that

it would not attempt to proceed with deportation proceedings until

it revoked the deferred action protection. See Lopez-Reyes v.

Gonzales, 496 F.3d 20, 22 (1st Cir. 2007). The information about

Granados Benitez's USCIS petition was not available to the IJ at

Granados Benitez's initial merits hearing, or to the Board in

Granados Benitez's appeal because Granados Benitez did not receive

his waitlist determination until the appeal was under

consideration.

On November 12, 2019, Granados Benitez timely filed with

the BIA a "Motion to Reopen and Remand Case" to the IJ based on

his USCIS waitlist letter. He requested "that his case be reopened

and [the] removal order vacated in light of a grant of deferred

action from [USCIS] because [Granados Benitez] has demonstrated

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eligibility for U nonimmigrant status." He stated that

"[d]eportation [s]hould be [s]tayed and the [c]ase [r]eopened and

[r]emanded because Mr. Granados was [p]laced on the U

[n]onimmigrant [v]isa [w]aitlist." He also raised other arguments

relating to his wife's I-130 petition and his request for voluntary

departure. He asked the BIA to reopen the case and remand to the

IJ for further consideration of those issues. Granados Benitez

did not request termination of his removal proceedings at any point

in the motion.

On April 30, 2020, the BIA issued a decision, captioned

"APPLICATION: Reopening; stay; voluntary departure." It stated

that "under the circumstances presented with the motion, we do not

find that reopening of these proceedings is appropriate." The BIA

ordered that "[t]he motion and stay request are denied." It gave

two reasons for its denial of the portion of Granados Benitez's

motion relating to his U visa application. First, the BIA claimed

it could only reopen Granados Benitez's case if the U visa was

granted. It stated, "[t]he regulations permit an alien to file a

motion to reopen and terminate proceedings upon approval of U

nonimmigrant status. . . . In this case, the respondent has not

been approved for U nonimmigrant status." It purported to rely on

language in 8 C.F.R. § 214.14(c)(5)(i), which states:

[When an application for a U visa is granted]
[a] petitioner who is subject to an order of
exclusion, deportation, or removal issued by

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 an immigration judge or the Board may seek
cancellation of such order by filing, with the
immigration judge or the Board, a motion to
reopen and terminate removal proceedings.

Second, the BIA weighed the fact that Granados Benitez

could pursue his U visa application in spite of the removal order.

It stated, "[Granados Benitez] is not precluded from obtaining a

U visa from the USCIS despite being the subject of a final order

of removal," and it claimed he could "file a new motion to reopen

and terminate proceedings" if and when USCIS issued him a U visa.

The BIA also rejected Granados Benitez's other grounds for

reopening and remand.

On May 29, 2020, Granados Benitez timely petitioned this

court for review of the BIA's denial of his motion to reopen.

II.

A. Standard of Review.

This court reviews the BIA's denial of a motion to reopen

for abuse of discretion. Smith v. Holder, 627 F.3d 427, 433 (1st

Cir. 2010). "The BIA has broad discretion, conferred by the

Attorney General, to grant or deny a motion to reopen." Id.

(internal quotation marks omitted) (quoting Kucana v. Holder, 558

U.S. 233, 250 (2010)). To demonstrate an abuse of discretion "the

complaining party" must "show that the BIA committed an error of

law or exercised its judgment in an arbitrary, capricious, or

irrational way." Shah v. Holder, 758 F.3d 32, 36 (1st Cir. 2014)

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(quoting Liu v. Holder, 727 F.3d 53, 56 (1st Cir. 2013)); see also

Wanjiku v. Barr, 918 F.3d 215, 221 (1st Cir. 2019). This standard

is met when the Board "neglect[s] to consider a significant factor

that appropriately bears on the discretionary decision, [or] . . .

attach[es] weight to a factor that does not appropriately bear on

the decision." Murillo-Robles v. Lynch, 839 F.3d 88, 91 (1st Cir.

2016) (quoting Henry v. I.N.S., 74 F.3d 1, 4 (1st Cir. 1996)).

The BIA also abuses its discretion if it "inexplicably depart[s]

from established policies, or rest[s] [its decision] on an

impermissible basis." Leblanc v. I.N.S., 715 F.2d 685, 693 (1st

Cir. 1983) (quoting Balani v. I.N.S., 669 F.2d 1157, 1161 (6th

Cir. 1982)). With the abuse of discretion rubric, we review the

BIA's determinations of law de novo. Da Silva Neto v. Holder, 680

F.3d 25, 28 (1st Cir. 2012).

B. Analysis.

We conclude that the Board has abused its discretion in

this case because it failed to follow its own precedents,

persuasive circuit law, and DHS policies in denying Granados

Benitez's motion to reopen and remand to the IJ. Further, the

Board failed to address ICE Directive 11005.2: Stay of Removal

Requests and Removal Proceedings Involving U Nonimmigrant Status

(U Visa) Petitioners. Finally, we reject the Board's argument –-

raised for the first time at oral argument –- that the appropriate

remedy for a finding of abuse of discretion is remand to the Board,

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without instructions to remand to the IJ. We emphasize that we do

not decide the merits of any motion to continue, except to note

Granados Benitez has made out a prima facie case for relief under

the existing standard, entitling him to remand to the IJ.

To prevail on a motion to reopen before the BIA, the

movant must show "new, material evidence that was not available or

discoverable at the prior hearing and must also present a prima

facie case of eligibility for the relief sought." Jutus v. Holder,

723 F.3d 105, 110 (1st Cir. 2013) (first citing Fesseha v.

Ashcroft, 333 F.3d 13, 20 (1st Cir. 2003); and then citing 8 C.F.R.

§ 1003.2(c)(1)).

The BIA does not dispute that Granados Benitez raised

new evidence not available at his merits hearing by presenting the

fact that he had been added to the U visa waitlist.

Rather, the Board states Granados Benitez did not show

that he was prima facie eligible for the relief he sought: in this

case, remand and temporary relief from his removal proceedings

based on the U visa waitlist determination. But it is the IJ who

customarily grants a continuance, and so Granados Benitez

explicitly asked for the appropriate relief from the Board:

reopening the proceedings and remanding to the IJ for consideration

of further relief. In concluding that Granados Benitez was not

eligible for that relief, the Board noted that his visa petition

was "only pending," that he was ineligible for a status adjustment

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under section 245(a) of the Immigration and Nationality Act, 8

U.S.C. § 1225(a), and that his plans to pursue consular processing

were "speculative."

In light of the fact that the motion filed by Granados

Benitez is a motion to reopen and seek a continuance from the IJ,

we conclude the Board abused its discretion. It abused its

discretion by failing to conduct a proper analysis, failing to

consider its own policies and precedents, and ignoring the position

of its sister agency, ICE. The Board did not analyze whether

Granados Benitez made out a prima facie case for a continuance

under the appropriate standard.

The current standard set by the Board for a continuance

in light of a U visa application is well settled. On remand from

the Ninth Circuit, the Board in Matter of Sanchez Sosa, 25 I. & N.

Dec. 807 (B.I.A. 2012), set out the three factors IJs should

consider in ruling on such a motion. These are: "(1) the DHS's

response to the motion; (2) whether the underlying visa petition

is prima facie approvable; and (3) the reason for the continuance

and other procedural factors." Id. at 812-13. The BIA also

stated, "[a]s a general rule, there is a rebuttable presumption

that an alien who has filed a prima facie approvable [U visa]

application with the USCIS will warrant a favorable exercise of

discretion for a continuance for a reasonable period of time."

Id. at 815.

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 Since Sanchez Sosa, the Board and the Attorney General

have revisited the standard for continuances in two published

decisions. Neither replaces the Sanchez Sosa standard for

evaluating continuances based on a U visa waitlist determination.

In Matter of L-A-B-R-, 27 I. & N. Dec. 405 (A.G. 2018), the Attorney

General stated that a continuance should be granted only for "good

cause," and that the IJ "must focus principally" on "(1) the

likelihood that the alien will receive the collateral relief

[underlying the motion for a continuance], and (2) whether the

relief will materially affect the outcome of the removal

proceedings." Id. at 413. These factors are consistent with the

Sanchez Sosa factors. In Matter of L-N-Y-, 27 I. & N. Dec. 755

(B.I.A. 2020), the Board cited approvingly the Sanchez Sosa

standard, but found that the petitioner in that case had failed to

diligently pursue a U visa, when he had been eligible to do so for

almost ten years before eventually filing his application with

USCIS. Id. at 757-58. These unusual circumstances are not present

in this case.

Decisions from other circuits further support our view

that the Board must follow the Sanchez Sosa framework, or explain

its reasons for applying a different standard. This court has not

previously considered the issue. But the Seventh Circuit found

the Board abused its discretion by denying a motion to remand

removal proceedings to the IJ for consideration of a motion to

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continue in light of a U visa application because the court found

the Board's analysis of the Sanchez Sosa factors too cursory.

Guerra Rocha, 951 F.3d at 853. In Guerra Rocha the petitioner

sought asylum in the United States. Id. at 850. While in the

U.S., she was the victim of a crime, and applied to USCIS for a U

visa. Id. On appeal from the denial of her asylum claim, Guerra

Rocha raised her pending U visa application and asked the Board to

remand her case to the IJ to consider a motion to continue. Id.

at 851. The Board "summarily" denied her request for a remand to

consider a continuance. Id. The Seventh Circuit stated "[t]he

BIA performed only a cursory analysis of Guerra Rocha's case --

one that fell considerably short of Sanchez Sosa's requirements."

Id. at 853. In particular, the Board failed to consider the

probability that relief would be granted.6 Id.

The Board itself has also found that a U visa waitlist

determination warranted reopening and remand, using the Sanchez

Sosa standard, in at least two unpublished decisions. In In re

6 The Second Circuit's unpublished decision in Cortes-
Gomez v. Barr, 765 Fed. App'x 593, 598-99 (2d Cir. 2019)
(unpublished decision), supports this view. In that case the
petitioner appealed from the IJ's denial of a continuance in light
of the petitioner's U visa application. Id. at 595-96. The
petitioner had not yet received a waitlist determination or any
other decision from USCIS, but he had the necessary materials in
his application. See id. at 598 & n.4. The Board dismissed the
appeal. In that case the Second Circuit concluded the Board abused
its discretion by failing to adequately explain why a U visa was
not prima facie available in considering the second Sanchez Sosa
factor. Id. at 598-99.

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Rosales De La Cruz, No. A088 806 933, 2016 WL 946691 (B.I.A. Feb.

18, 2016) (unpublished decision), the Board reopened and "remanded

[the matter] to the Immigration Judge for further proceedings"

where the petitioner provided evidence that his spouse had

submitted a U visa application in which he was listed as a

derivative beneficiary and that his spouse was prima facie eligible

for a U visa. Id. at *1. In In re Ramirez-Rios, No. A088 658

419, 2016 WL 1084499 (B.I.A. Feb. 29, 2016) (unpublished decision),

the Board issued an almost identical decision in similar

circumstances. See id. at *1. This court gives the Board's

unpublished opinions less weight than its published decisions.

But "we see no earthly reason why the mere fact of nonpublication

should permit an agency to take a view of the law in one case that

is flatly contrary to the view it set out in earlier (yet

contemporary) cases." Thompson v. Barr, 959 F.3d 476, 487 (1st

Cir. 2020) (quoting Dávila-Bardales v. I.N.S., 27 F.3d 1, 5-6 (1st

Cir. 1994)).

We conclude that Sanchez Sosa remains the applicable

standard for considering whether a continuance is likely to be

available. In this case, the Board did not even cite to that

standard. Rather, it mischaracterized Granados Benitez's request

as a motion to reopen and terminate proceedings, and denied his

application under the standard for that different motion. In doing

so it "inexplicably departed from established policies," Leblanc,

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715 F.2d at 693 (quoting Balani, 669 F.2d at 1161), and "attach[ed]

weight to a factor that does not appropriately bear on the

decision," Murillo-Robles, 839 F.3d at 91 (quoting Henry, 74 F.3d

at 4).

The Board's arguments in response are meritless. Before

this court, the Board again mischaracterizes Granados Benitez's

motion to reopen and remand as a motion to reopen and terminate.

On that basis, it argues that the Board properly applied 8 C.F.R.

§ 214.14(c)(5)(i), which refers to motions to reopen and terminate

removal proceedings. There is no support in the record for this

reading of Granados Benitez's motion. The motion is captioned

"Motion to Reopen and Remand Case." In the motion, Granados

Benitez asks for reopening, remand, and a stay. He does not use

the word "terminate" or any of its synonyms to describe the relief

he seeks. The Board's own decision was captioned "APPLICATION:

Reopening; stay; voluntary departure." The caption did not mention

termination of removal proceedings. And the Board stated in its

decision, "[Granados Benitez] filed a timely motion to

reopen . . . [and] also requests a remand for consideration of

voluntary departure and a stay of removal." The only mention of

a motion to terminate removal proceedings comes from the Board's

discussion of § 214.14(c)(5)(i). The Board has not explained why

§ 214.14(c)(5)(i) applies to Granados Benitez's motion, which is

properly construed as a motion to reopen and remand, not a motion

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to reopen and terminate removal proceedings. Section

214.14(c)(5)(i) says nothing about motions, like Granados

Benitez's, to reopen and remand. Nor does § 214.14(c)(5)(i)

indicate that it is the exclusive mechanism for a U visa waitlist

recipient to reopen his or her removal proceedings. It states

only that in the circumstances outlined in that regulation a

petitioner "may" file a motion for reopening and termination of

removal proceedings.7 Id.

The Board also claims Guerra Rocha, 951 F.3d at 851, and

Cortes-Gomez v. Barr, 765 Fed. App'x 593, 595-96 (2d Cir. 2019),

are distinguishable because in those cases the petitioners raised

their motions to remand during their appeals to the Board when

there was not yet a final order of removal, instead of during a

post-appeal motion after a final order of removal had been issued.

But the Board points to no case law that indicates that post-

appeal motions to reopen are subject to a different standard. And

the Board has applied the same Sanchez Sosa standard to post-

appeal motions to reopen in its unpublished decisions. See

Ramirez-Rios, 2016 WL 1084499, at *1; Rosales De La Cruz, 2016 WL

946691, at *1.

7 Because 8 C.F.R. § 214.14(c)(5)(i) plainly does not
prohibit the relief Granados Benitez seeks, we do not reach any
legal questions about the Board's interpretation of the remainder
of the regulation.

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 Further, the Board ignored a second inconsistency

between its decision in this case and the position taken by the

parts of DHS tasked with the administration and enforcement of

immigration laws. Granados Benitez cited in his motion to reopen

ICE Directive 11005.2: Stay of Removal Requests and Removal

Proceedings Involving U Nonimmigrant Status (U Visa) Petitioners.

Several sections in ICE Directive 11005.2 are relevant to this

petition for review.

The Directive states:

[I]t is ICE policy to respect USCIS's grant of
deferred action to a U visa petitioner.
Accordingly, ICE will not remove a U visa
petitioner or qualifying family member whom
USCIS has placed on the waiting list and
granted deferred action unless a new basis for
removal has arisen since the date of the
waiting list placement or USCIS terminates
deferred action.

U.S. Immigr. & Customs Enf't, ICE Directive 11005.2: Stay of

Removal Requests and Removal Proceedings Involving U Nonimmigrant

Status (U Visa) Petitioners § 2 (2019) ("ICE Directive 11005.2").

The Directive defines a "[U visa] Waiting List Determination" as

"[a] USCIS decision on a U visa petition that is the functional

equivalent of a full adjudication on the merits of the petition."

Id. at § 3.5 (emphasis added). It states "[a] petitioner is placed

on the waiting list when, due solely to the statutory cap, a U-1

nonimmigrant visa is not currently available." Id. The Directive

further states, "[i]n cases involving pending U visa

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petitioners . . . [ICE] attorneys will consider the totality of

the circumstances . . . when determining whether to exercise

discretion to grant or deny a Stay of Removal or join a motion to

terminate removal proceedings." Id. at § 2.

USCIS and ICE are responsible for the administration of

immigration services and the enforcement of immigration laws,

respectively. See Homeland Security Act of 2002, Pub. L. No. 107-

296, 116 Stat. 2135. USCIS has granted Granados Benitez deferred

action because of his U visa waitlist status. Directive 11005.2

states that ICE policy is to defer to that determination.

Independently, ICE recognizes that U visa waitlist status entitles

some aliens to relief from removal proceedings in appropriate

circumstances. The Board correctly argues that it is not bound by

ICE's guidance, which by its own terms applies only to that agency.

ICE Directive 11005.2 § 3. But the fact that two agencies within

DHS, which are responsible for administering the bulk of

immigration laws, agree with Granados Benitez that U visa waitlist

status entitles him to relief from removal proceedings is at least

a "significant factor" that should weigh on the Board's analysis

of that issue. See Murillo-Robles, 839 F.3d at 91 (quoting Henry,

74 F.3d at 4). Again, the Board does not even purport to have

considered this issue in denying Granados Benitez's motion, even

though he expressly raised the issue in his motion. Here, too,

the Board "neglect[ed] to consider a significant factor" in

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exercising its discretion in this case. Id. (quoting Henry, 74

F.3d at 4).

The Board's remaining arguments are also meritless. It

states that Granados Benitez failed to exhaust any claim that he

would be entitled to a continuance from the IJ under Sanchez Sosa

because he did not raise that argument in his brief to the Board.

We disagree. "The purpose of [the administrative exhaustion]

requirement is to prevent the courts from usurping the agency's

functions and to 'allow[] the agency the first opportunity to

correct its own bevues.'" Meng Hua Wan v. Holder, 776 F.3d 52, 56

(1st Cir. 2015) (alteration in original) (quoting Mazariegos-Paiz

v. Holder, 734 F.3d 57, 63 (1st Cir. 2013)). Here, the IJ has the

power to grant a continuance. See 8 C.F.R. § 1003.29. Granados

Benitez sought from the Board the relief that the Board was able

to grant -- reopening and remand to the IJ for further proceedings.

It is clear from his motion that Granados Benitez was seeking

remand to the IJ so that he could seek further temporary relief

from his removal proceedings. The Board had a full opportunity to

consider those arguments. There was no failure to exhaust.

The Board also argues that it left open the possibility

that Granados Benitez could refile his motion to reopen once USCIS

formally approved his application for a U visa, so Granados Benitez

has not exhausted his administrative remedies because he could get

relief in some future proceeding. Again, we disagree. The fact

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that Granados Benitez could, in theory, get relief in some new

administrative proceeding in the future does not undermine the

fact that he has exhausted all administrative avenues available to

him in his current claim.

At oral argument, the Board also argued for the first

time that if this court were to find that its denial of the motion

to reopen was an abuse of discretion, this matter should be

remanded to the Board without instructions to remand to the IJ.

Counsel stated that the Board may wish to "provide guidance" to

the IJ as to how the Sanchez Sosa factors apply. The Board has

provided us with no reason to do what it newly argues.

III.

Accordingly, we grant the petition. The decision of the

Board is vacated and this matter is remitted to the Board with

directions that the Board grant the motion to reopen and remand

the case to the IJ for further proceedings consistent with this

opinion.

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