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
- 2 - 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,
- 3 - 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
- 4 - 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.
- 5 - 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 . . . .
- 6 - 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).
- 7 - 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
- 8 - 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
- 9 - 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)
- 10 - (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,
- 11 - 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
- 12 - 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.
- 13 - 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
- 14 - 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.
- 15 - 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,
- 16 - 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
- 17 - 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.
- 18 - 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
- 19 - 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
- 20 - 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
- 21 - 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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