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U visa cases 2012

  1. 1. http://www.justice.gov/eoir/vll/intdec/vol25/3753.pdfCite as 25 I&N Dec. 807 (BIA 2012) Interim Decision #3753 Matter of Cezareo SANCHEZ SOSA, et al., Respondents Decided June 7, 2012 U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals(1) In determining whether good cause exists to continue removal proceedings to await the adjudication of an alien’s pending U nonimmigrant visa petition, an Immigration Judge should consider (1) the response of the Department of Homeland Security to the alien’s motion to continue; (2) whether the underlying visa petition is prima facie approvable; and (3) the reason for the continuance and other procedural factors.(2) To establish prima facie eligibility for a U nonimmigrant visa, an alien must have suffered substantial physical or mental abuse as the innocent victim of a qualifying crime for which the alien has been, is being, or will be helpful to law enforcement, which ordinarily requires an approved law enforcement certification.(3) An alien who has filed a prima facie approvable petition for a U visa with the United States Citizenship and Immigration Services will ordinarily warrant a favorable exercise of discretion for a continuance for a reasonable period of time.FOR RESPONDENT: Meredith R. Brown, Esquire, Glendale, CaliforniaFOR THE DEPARTMENT OF HOMELAND SECURITY: Jailuk Parrino, Assistant ChiefCounselBEFORE: Board Panel: NEAL, Chairman; GREER and MALPHRUS, Board Members.GREER, Board Member: In Sanchez Sosa v. Holder, 373 F. App’x 719 (9th Cir. 2010), theUnited States Court of Appeals for the Ninth Circuit denied the respondents’petition for review of our decision denying their motion to remand. However,the court found that the Immigration Judge abused his discretion in denyinga motion for continuance to pursue the lead respondent’s U visa request andgranted the petition in that regard. The record was remanded to us for furtherproceedings on that issue. We now articulate the factors that an Immigration Judge and the Boardshould consider in determining whether an alien has established good causeto continue a case involving a U nonimmigrant visa petition. We will remand 807
  2. 2. Cite as 25 I&N Dec. 807 (BIA 2012) Interim Decision #3753the record to the Immigration Judge to apply the factors we set forthto determine if a further continuance is warranted in this case. I. FACTUAL AND PROCEDURAL HISTORY The respondents are natives and citizens of Mexico—a husband, the leadrespondent, and his wife and two children. They were served with a noticeto appear on April 10, 2002. During the respondents’ merits hearingon November 4, 2005, they sought a continuance because the leadrespondent’s U nonimmigrant visa petition, which included the otherrespondents as derivatives, was pending with the United States Citizenship andImmigration Services (“USCIS”). However, the Immigration Judge deniedtheir requests for a continuance or administrative closure to await adjudicationof the visa petition by the USCIS. The Immigration Judge issued an oraldecision finding the respondents removable as charged under section212(a)(6)(A)(i) of the Immigration and Nationality Act, 8 U.S.C.§ 1182(a)(6)(A)(i) (2006), and denying the applications for cancellationof removal under section 240A(b)(1) of the Act, 8 U.S.C. § 1229b(b)(1)(2006), filed by the lead respondent and his wife. On July 12, 2007, we dismissed the respondents’ appeal and denied theirmotion to remand for further consideration of their cancellation applicationsand to apply for adjustment of status. Regarding the lead respondent’s U visapetition, we determined that the Immigration Judge properly deniedadministrative closure. We also concluded that the Immigration Judge’s denialof a continuance was appropriate given that the cancellation applications hadbeen pending for more than 3 years. The respondents filed a petition forreview of our decision with the Ninth Circuit on August 13, 2007.1 On April 5, 2010, the Ninth Circuit affirmed our denial of the respondents’motion to remand to apply for adjustment of status but found that their motionto continue to pursue the lead respondent’s U visa petition was improperlydenied. Consequently, the court denied the respondents’ petition for reviewin part, granted it in part, and remanded the record to us for furtherproceedings. On remand, the respondents maintain that the lead respondent’s U visapetition is still pending before the USCIS, and they request that their removal1 The respondents also filed a motion to reopen with the Board on August 17, 2007, arguingeligibility for employment-based adjustment of status. On November 8, 2007, we deniedthe motion to reopen, finding that the lead respondent had not established prima facieeligibility for adjustment of status because he did not have an approved Immigrant Petitionfor Alien Worker (Form I-140). 808
  3. 3. Cite as 25 I&N Dec. 807 (BIA 2012) Interim Decision #3753proceedings be stayed or that the record be remanded to the Immigration Judgeuntil the application is adjudicated. The Department of Homeland Security(“DHS”) asserts that remand to the Immigration Judge and continuance areinappropriate, arguing that the respondents did not use due diligence in filingfor U nonimmigrant status, the record contains inadequate evidence thatan application was ever filed with the USCIS, and the respondents have notestablished that they are prima facie eligible for U visas. II. ANALYSIS A. U Nonimmigrant Visa 1. Statute and Regulations Congress created the U visa as part of the Victims of Trafficking andViolence Protection Act of 2000, title V, Pub. L. No. 106-386, 114 Stat. 1464,1518-37 (entitled Battered Immigrant Women Protection Act of 2000(“BIWPA”)). The purpose of the statute was to “strengthen the ability of lawenforcement agencies to detect, investigate, and prosecute cases of domesticviolence, sexual assault, trafficking of aliens, and other crimes . . . whileoffering protection to victims of such offenses in keeping with thehumanitarian interests of the United States.” Id. § 1513, 114 Stat. at 1533;see also Lee v. Holder, 599 F.3d 973, 974 (9th Cir. 2010). Further, “Congresswanted to encourage aliens who are victims of criminal activity to report thecriminal activity to law enforcement and fully participate in the investigationand prosecution of the perpetrators of such criminal activity.” NewClassification for Victims of Criminal Activity; Eligibility for “U”Nonimmigrant Status, 72 Fed. Reg. 53,014, 53,018 (Sept. 17, 2007)(Supplementary Information) (citing BIWPA § 1513(a)(1)(B)). Section 101(a)(15)(U)(i) of the Act, 8 U.S.C. § 1101(a)(15)(U)(i) (2006),states in relevant part that an alien is eligible for U-1 nonimmigrant statusif the Secretary of Homeland Security determines that (I) the alien has suffered substantial physical or mental abuse as a result of having been a victim of criminal activity . . . (II) the alien (or in the case of an alien child under the age of 16, the parent, guardian, or next friend of the alien) possesses information concerning criminal activity . . . [and] (III) the alien (or in the case of an alien child under the age of 16, the parent, guardian, or next friend of the alien) has been helpful, is being helpful, or is likely to be helpful to a Federal, State, or local law enforcement official, . . . prosecutor, . . . judge, . . . or . . . other . . . authorities . . . prosecuting criminal activity . . . . 809
  4. 4. Cite as 25 I&N Dec. 807 (BIA 2012) Interim Decision #3753 The implementing regulations for section 101(a)(15)(U)(i) are codified at8 C.F.R. § 214.14 (2012). Thus, “physical or mental abuse” is defined by theregulations as “injury or harm to the victim’s physical person, or harmto or impairment of the emotional or psychological soundness of the victim.”8 C.F.R. § 214.14(a)(8). Both the statute and the regulations define “criminal activity” by referenceto a number of offenses “or any similar activity” in violation of Federal, State,or local criminal law. Section 101(a)(15)(U)(iii) of the Act; see also 8 C.F.R.§ 214.14(a)(9).2 The criminal activity must have “violated the laws of theUnited States or occurred in the United States” or its territories or possessions.Section 101(a)(15)(U)(i)(IV) of the Act; see also 8 C.F.R. § 214.14(b)(4).Moreover, aliens who are guilty of the qualifying criminal activity beinginvestigated or prosecuted are ineligible for a U visa. See 8 C.F.R.§ 214.14(a)(14)(iii) (“A person who is culpable for the qualifying criminalactivity being investigated or prosecuted is excluded from being recognized asa victim of qualifying criminal activity.”). U nonimmigrant status may be approved for up to 4 years, and extensionsmay be requested. 8 C.F.R. § 214.14(g).3 Moreover, an alien may apply to theUSCIS for adjustment of status to become a lawful permanent resident if heor she can show continuous physical presence in the United States for a periodof at least 3 years after acquiring U nonimmigrant status and establish that hisor her continued presence in the United States “is justified on humanitariangrounds, to ensure family unity, or is otherwise in the public interest.” Section245(m) of the Act, 8 U.S.C. § 1255(m) (2006); see also 8 C.F.R. § 245.24(k)(2012).2 Specifically, these crimes include the following: rape; torture; trafficking; incest; domestic violence; sexual assault; abusive sexual contact; prostitution; sexual exploitation; female genital mutilation; being held hostage; peonage; involuntary servitude; slave trade; kidnapping; abduction; unlawful criminal restraint; false imprisonment; blackmail; extortion; manslaughter; murder; felonious assault; witness tampering; obstruction of justice; perjury; or attempt, conspiracy, or solicitation to commit any of the above mentioned crimes.Section 101(a)(15)(U)(iii) of the Act; see also 8 C.F.R. § 214.14(a)(9).3 The Act also provides that when the alien victim is 21 years of age or older, the alien’sspouse and children may accompany or follow to join him or her; when the alien victim isunder age 21, the spouse, children, parents, and unmarried siblings under age 18 mayaccompany or follow to join. Section 101(a)(15)(U)(ii) of the Act; see also 8 C.F.R.§ 214.14(a)(10), (f)(1). 810
  5. 5. Cite as 25 I&N Dec. 807 (BIA 2012) Interim Decision #3753 2. Application Process The alien bears the burden to establish eligibility for the U visa. 8 C.F.R.§ 214.14(c)(4). To obtain a U visa, an alien must file with the USCISa Petition for U Nonimmigrant Status (Form I-918), a biometric fee or feewaiver request, and “initial evidence” in accordance with instructions to theForm I-918. 8 C.F.R. § 214.14(c)(1). The alien must also submit a FormI-918, Supplement B (U Nonimmigrant Status Certification), known as a lawenforcement certification (“LEC”), which is a form signed by a designated lawenforcement official within 6 months immediately preceding its submission tothe USCIS. 8 C.F.R. § 214.14(c)(2)(i). The LEC certifies that the alien hasbeen, is being, or is likely to be helpful to the investigation or prosecutionof qualifying criminal activity. See section 214(p)(1) of the Act, 8 U.S.C.§ 1184(p)(1) (2006); 8 C.F.R. § 214.14(c)(2)(i). Further, the alien must submitdocumentation that he or she has suffered direct or proximate harm from thecriminal activity, materials related to the alien’s physical or mental abuseas a victim of the criminal activity, information the alien possesses regardingthe criminal activity, evidence of the alien’s helpfulness to law enforcement,evidence that the criminal activity violated United States law or occurred in theUnited States, and a personal statement. See 8 C.F.R. § 214.14(a)(14), (b),(c)(2). U visas are available only to aliens who are admissible to the United Statesor who have been granted a waiver of inadmissibility by the USCIS. 8 C.F.R.§§ 212.17(a), 214.1(a)(3)(i) (2012). If an alien is inadmissible, he must filean application to waive inadmissibility on Form I-192 (Application forAdvance Permission to Enter as Nonimmigrant) as part of the evidentiarysubmission. 8 C.F.R. § 214.14(b), (c)(2)(iv). The USCIS may, in itsdiscretion, grant a waiver of inadmissibility if it determines that doingso would be in the public or national interest. 8 C.F.R. § 212.17(b)(1).In cases involving violent or dangerous crimes or inadmissibility relatingto national security issues, the USCIS will exercise its discretionto waive inadmissibility only “in extraordinary circumstances.” 8 C.F.R.§ 212.17(b)(2). The USCIS has exclusive jurisdiction over U visa petitions andapplications for adjustment of status under section 245(m) of the Act.See 8 C.F.R. §§ 214.14(c)(1), 245.24(f), (k); see also Lee v. Holder, 599 F.3dat 975-76; Sanchez v. Mukasey, 508 F.3d 1254, 1255-56 (9th Cir. 2007).Neither a U visa petition nor an adjustment application based on an approved 811
  6. 6. Cite as 25 I&N Dec. 807 (BIA 2012) Interim Decision #3753U visa petition may be renewed during an alien’s removal proceedings beforethe Immigration Judge. See 8 C.F.R. §§ 214.14(c)(5)(ii), 245.24(f)(2).4 While an Immigration Judge does not have jurisdiction over a U visapetition, an alien in removal proceedings may request a continuance from theImmigration Judge to seek such a visa or await a decision from the USCISon a pending U visa petition.5 See Sanchez v. Mukasey, 508 F.3d at 1255-56;see also 72 Fed. Reg. at 53,022 n.10 (Supplementary Information) (“While thisrule specifically addresses joint motions to terminate, it does not preclude theparties from requesting a continuance of the proceeding.”).6 B. Motions for Continuance Immigration Judges have broad discretionary authority over continuancesbased on the regulations, which state that an “Immigration Judge may granta motion for continuance for good cause shown.” 8 C.F.R. § 1003.29 (2012);see also Matter of Rajah, 25 I&N Dec. 127, 129-30 (BIA 2009); 8 C.F.R.§ 1240.6 (2012) (stating that an Immigration Judge may grant a reasonableadjournment at his or her own instance or for good cause shown by eitherparty). While good cause is not defined in the regulations, the Board has identifiedfactors to be evaluated that are relevant to the purpose of, and the process for,acquiring visas in other contexts. In Matter of Hashmi, 24 I&N Dec. 785 (BIA2009), we set forth “a framework to analyze whether good cause existsto continue proceedings to await adjudication by the USCIS” of a pendingfamily-based visa petition. Matter of Rajah, 25 I&N Dec. at 130 (discussingMatter of Hashmi); see also Malilia v. Holder, 632 F.3d 598, 606 (9th Cir.2011) (adopting the Hashmi factors). We extended the Hashmi factorsto employment-based visa petitions in Matter of Rajah, with additionalconsideration for the different procedural steps involved in that context. Certain of the Hashmi factors also relate to the U visa, in particular: (1) theDHS’s response to the motion; (2) whether the underlying visa petitionis prima facie approvable; and (3) the reason for the continuance and other4 A denial of a U visa petition may be appealed to the Administrative Appeals Office.8 C.F.R. § 214.14(c)(5)(ii). The Board has no jurisdiction to review this determination.5 The regulations also provide that proceedings may be terminated without prejudice whilea U visa petition is pending before the USCIS if both parties agree. 8 C.F.R.§ 214.14(c)(1)(i).6 The U visa is predicated on law enforcement priorities, which distinguishes it from mostnonimmigrant classifications for which a continuance would not be warranted. 812
  7. 7. Cite as 25 I&N Dec. 807 (BIA 2012) Interim Decision #3753procedural factors.7 Matter of Hashmi, 24 I&N Dec. at 790. Thus,as an initial matter, “the Immigration Judge should consider the DHS’sposition.” Id. at 791. If the DHS does not oppose a continuance, “theproceedings ordinarily should be continued by the Immigration Judge in theabsence of unusual, clearly identified, and supported reasons for not doing so.”Id. “Government opposition that is reasonable and supported by the record”is a significant consideration, while “unsupported opposition does not carrymuch weight.” Id. Where the DHS opposes the continuance or further inquiry is otherwisewarranted, “the focus of the inquiry is the likelihood of success” on the visapetition. Matter of Rajah, 25 I&N Dec. at 130; see also Matter of Hashmi,24 I&N Dec. at 790-91. Here, this relates to the respondent’s prima facieeligibility for the U visa. In this regard, the Immigration Judge should firstconsider whether it is likely that the respondent will be able to show thathe suffered “substantial physical or mental abuse” as a victim of qualifyingcriminal activity, as opposed to only minor or incidental harm. Section101(a)(15)(U)(i)(I) of the Act. Factors to be considered include the natureof the injury inflicted, the duration of the harm, and the severity of theperpetrator’s conduct. See 8 C.F.R. § 214.14(b)(1). Documentary evidence,such as medical reports or psychological evaluations that would be submittedto the DHS to support the petition, should be submitted to establish the extentof any injury. Also, the underlying criminal activity must be a crimeenumerated in section 101(a)(15)(U)(iii) of the Act or “similar activity”in violation of the laws of the United States, see section 101(a)(15)(U)(i)(IV)of the Act; 8 C.F.R. § 214.14(b)(4), and the alien himself may not be culpable.8 C.F.R. § 214.14(a)(14)(iii). If any of these requirements are not met, furtherevaluation of the respondent’s assistance to law enforcement is not necessary,since the alien could not qualify for the U visa, even if he did obtain an LEC. If the respondent has made a prima facie showing of abuse as a victimof a qualifying crime, the Immigration Judge should evaluate whether thealien has relevant information and has been, is being, or will be helpfulto authorities investigating or prosecuting it. 8 C.F.R. § 214.14(b). Thisrequirement may be shown if the alien has obtained the LEC certification.See, e.g., Torres-Tristan v. Holder, 656 F.3d 653, 657 n.4 (7th Cir. 2011)(observing that an alien is not able to provide information useful7 In Hashmi, we also identified the alien’s statutory eligibility for adjustment of status andthe discretionary merit of his or her application, which would be adjudicated by theImmigration Judge upon approval of the underlying visa petition. Here, the entire U visaprocess, including adjustment of status under section 245(m) of the Act, falls under USCISjurisdiction. Hence, we need not evaluate the alien’s potential eligibility for adjustment.Instead, we focus on the alien’s prima facie eligibility for the U visa. 813
  8. 8. Cite as 25 I&N Dec. 807 (BIA 2012) Interim Decision #3753to investigating and prosecuting a crime if the statute of limitations hasexpired). Ordinarily, the alien would not be able to show good cause if theLEC has not been approved, absent DHS support or other circumstances thatthe Immigration Judge finds compelling.8 Cf. Matter of Rajah, 25 I&N Dec.at 136-37 (stating that an alien may lack good cause for a continuance basedon a pending labor certification in the absence of additional persuasive factorssuch as the demonstrated likelihood of its imminent adjudication or DHSsupport for the motion). If the alien is inadmissible, he or she must file a waiver applicationon Form I-192 as part of the evidentiary submission to the USCIS. 8 C.F.R.§ 214.14(b), (c)(2). The USCIS may, in its discretion, grant a waiverof inadmissibility and, as to any criminal offenses, will “consider the numberand severity of the offenses.” 8 C.F.R. § 212.17(b)(2). “In cases involvingviolent or dangerous crimes or inadmissibility based on the security and relatedgrounds in section 212(a)(3) of the Act,” the USCIS will only grant the waiver“in extraordinary circumstances.” Id. Thus, when the alien is inadmissible,the Immigration Judge should assess the likelihood that the USCIS willexercise its discretion favorably under the regulatory standard as part of thedetermination of prima facie eligibility. See Torres-Tristan v. Holder,656 F.3d at 656 n.3. When Form I-918 and the Form I-918 Supplement B have been filed,an alien generally should provide the Immigration Judge with copies of thesesubmissions and relevant supporting documents, including a waiverof inadmissibility on Form I-192, if applicable.9 See Matter of Hashmi,24 I&N Dec. at 792. The alien should also provide a receipt indicating that thepetition has been submitted to the USCIS. If the alien shows that he has fileda completed application before the USCIS, including the LEC, and the petitionappears to meet the necessary criteria to be granted, then any delay notattributable to the alien “augurs in favor of a continuance.” Id. at 793; see alsoMalilia v. Holder, 632 F.3d at 606 (“[D]elays in the USCIS approval processare no reason to deny an otherwise reasonable continuance request.”).However, “a history of continuances being granted by the Immigration Judge”to await adjudication of a U visa petition “coupled with other relevant factors,may support a decision to move forward with the case.” Matter of Hashmi,24 I&N Dec. at 794. Thus, even if a completed application is pending with the8 Law enforcement is not obligated to issue an approved LEC, which is a discretionarydetermination. Ordonez Orosco v. Napolitano, 598 F.3d 222, 227 (5th Cir. 2010) (statingthat the LEC determination “is a classic example of a discretionary decision”).9 If there are other respondents whose removal proceedings are consolidated with thepetitioning alien’s, as in this case, the Form I-918 Supplement A (Petition for QualifyingFamily Member of U-1 Recipient) should also be provided. See 8 C.F.R. § 214.14(f)(2). 814
  9. 9. Cite as 25 I&N Dec. 807 (BIA 2012) Interim Decision #3753USCIS, the Immigration Judge may consider the length of time the applicationhas been pending, the number of prior continuances that the court hasprovided, and additional relevant considerations in deciding whether a furthercontinuance is warranted under the circumstances.10 Morever, as notedin Matter of Hashmi, 24 I&N Dec. at 790, these factors are not exhaustive, andthe Immigration Judge may consider other relevant considerationsin determining whether good cause has been shown for a continuance. With a U visa petition, as with a family-based or employment-basedpetition, the Immigration Judge should consider and articulate all of therelevant factors to “evaluate the viability of the underlying” petition anddetermine whether it is likely to be granted by the USCIS. Matter of Hashmi,24 I&N Dec. at 791; see also Matter of Rajah, 25 I&N Dec. at 130.As a general rule, there is a rebuttable presumption that an alien who has fileda prima facie approvable application with the USCIS will warrant a favorableexercise of discretion for a continuance for a reasonable period of time. SeeMatter of Hashmi, 24 I&N Dec. at 790. However, an alien who is unlikelyto be granted the U visa should not be permitted to seek a visa as a dilatorytactic to forestall the conclusion of removal proceedings. C. Respondents’ Request for Continuance Based on the Ninth Circuit’s remand in this case, the respondents do notnow have final orders of removal and are seeking to continue their removalproceedings to await USCIS adjudication of the lead respondent’s pendingU visa. The DHS opposes the request, arguing primarily (1) that the recorddoes not contain documentary evidence sufficient to establish thatan application is pending with the USCIS and (2) that the lead respondent hasnot shown that he is prima facie eligible for a U visa. The respondents provided an LEC from 2003, another from 2005,a personal statement, and other materials related to both the criminal activitythe respondents experienced and their victimization. See 8 C.F.R.§ 214.14(a)(14). The respondents did not file a copy of the Form I-918 or anapplication to waive inadmissibility with the Immigration Judge, apparentlybecause the DHS had not yet promulgated regulations implementing the U visastatute at the time of their Immigration Court proceedings in November 2005.The U visa regulations were later published in 2007. See 72 Fed. Reg. 53,014;see also Violence Against Women and Department of Justice Reauthorization10 Aliens subject to an order of removal may seek a stay from the USCIS to await theadjudication of a U visa. Section 237(d) of the Act, 8 U.S.C. § 1227(d)(2006); 8 C.F.R.§ 214.14(c)(1)(ii). If the U visa is granted, the alien may file a motion to reopen andterminate removal proceedings under 8 C.F.R. § 214.14(c)(5)(i). 815
  10. 10. Cite as 25 I&N Dec. 807 (BIA 2012) Interim Decision #3753Act of 2005, § 828, Pub. L. No. 109-162, 119 Stat. 2960, 3066. Therespondents’ counsel stated at their hearing before the Immigration Judgein November 2005 that a U visa request had recently been submitted and thatthey were waiting for the USCIS to send them a receipt. Upon the Ninth Circuit’s remand to the Board, the respondents’ counselsubmitted a declaration indicating that the U visa request remains pendingbefore the USCIS. However, this declaration does not constitute proof that thematerials were ever filed and that the application is actually pending before theUSCIS. On remand, the respondents should be given a final opportunityto provide copies of and proof regarding the filing of their application with theUSCIS and to otherwise meet the criteria established in this decision forthe Immigration Judge’s consideration of their request for a continuance.We express no opinion as to the outcome on remand. Rather, we areremanding for the Immigration Judge to apply the factors now set forthas a matter of first impression. Accordingly, we will remand these proceedings to the Immigration Judgeto further evaluate whether the respondents have established good cause fora continuance based on all of the foregoing and any other factors theImmigration Judge deems relevant. ORDER: The record is remanded to the Immigration Judge for furtherproceedings consistent with the foregoing opinion and for the entry of a newdecision. 816
  11. 11. http://www.ca3.uscourts.gov/opinarch/113765np.pdf NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________ Nos. 11-3765 & 11-4560 ___________ HERBERT SAINT AUBYN POWELL, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES, Respondent ____________________________________ On Petitions for Review of Orders of the Board of Immigration Appeals (Agency No. A014 883 407) Immigration Judge: Honorable Margaret R. Reichenberg ____________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a) July 13, 2012 Before: SLOVITER, SMITH and COWEN, Circuit Judges (Opinion filed: July 13, 2012) ___________ OPINION ___________PER CURIAM Herbert Saint Aubyn Powell, a citizen of Jamaica, was admitted to the UnitedStates in 1967 as a lawful permanent resident, at age 6. As an adult, Powell wasconvicted of several criminal offenses. The Government charged him with removabilityfor having been convicted of aggravated felonies, Immigration and Nationality Act 1
  12. 12. (“INA”) § 237(a)(2)(A)(iii) [8 U.S.C. § 1227(a)(2)(A)(iii)], and crimes involving moralturpitude, INA § 237(a)(2)(A)(ii) [8 U.S.C. § 1227(a)(2)(A)(ii)]. Powell appeared beforean Immigration Judge (“IJ”), denied removability, and applied for asylum, withholding ofremoval, and protection under the United Nations Convention Against Torture (“CAT”). The IJ concluded that Powell was removable as charged,1 held that his aggravatedfelony convictions rendered him ineligible for asylum,2 and rejected Powell‟s assertionthat he acquired citizenship either through his military service or derivatively through hismother. Furthermore, the IJ declined to stay the proceedings to allow Powell to pursuepost-conviction relief from his convictions. With respect to Powell‟s application forwithholding of removal under INA § 241(b)(3) [8 U.S.C. § 1231(b)(3)] and relief underthe CAT, which was based on his deceased father‟s political activities in Jamaica, the IJheld that Powell had not met his burden of proof.1 In particular, the IJ held that Powell‟s January 31, 2005 conviction for conspiracy tocommit bank fraud and bank fraud, 18 U.S.C. §§ 371 & 1344, was an aggravated felony.See INA §§ 101(a)(43)(M) and (U) [8 U.S.C. §§ 1101(a)(43)(M) and (U)]. In addition,the IJ concluded that Powell had committed an aggravated felony based on a New Yorkconviction for second degree robbery, N.Y. Penal Law § 160.10, for which he wassentenced to a term of imprisonment of 18 to 54 months. See INA § 101(a)(43)(G) [8U.S.C. § 1101(a)(43)(G)]. Finally, the IJ found that Powell had been convicted of twocrimes involving moral turpitude not arising out of a single scheme of criminalmisconduct. INA § 237(a)(2)(A)(ii). In support of this conclusion, the IJ cited Powell‟sbank fraud conviction, the New York conviction for second degree robbery, and a NewJersey conviction for theft by deception, N.J. Stat. Ann. 2C:20-4.2 The IJ also found that Powell‟s aggravated felony convictions barred him fromcancellation of removal, a waiver of inadmissibility under INA § 212(h) [8 U.S.C.§ 1182(h)], and voluntary departure. 2
  13. 13. The Board of Immigration Appeals (“BIA”) dismissed Powell‟s appeal onSeptember 30, 2011. The Board held that the IJ correctly denied withholding of removaland CAT relief.3 In particular, the BIA noted that Powell did not challenge the IJ‟sconclusion that he did not establish a nexus between his fear of persecution and astatutorily protected ground, as required for withholding of removal. With respect to theCAT claim, the Board agreed that Powell failed to demonstrate that a public officialwould likely acquiesce in or exhibit willful blindness toward torture. Powell attempted topresent additional documentation in support of his claims, including a letter from hissister, but the BIA refused to consider it and determined that the new evidence would notsupport a motion to remand. Furthermore, the Board also noted that any pendingcollateral attacks on Powell‟s convictions did not affect their finality for immigrationpurposes. The BIA also stated that it lacked jurisdiction to consider Powell‟s equalprotection challenge to statutory naturalization requirements, held that Powell failed toidentify any error in the IJ‟s conclusion that he was not a national of the United States,and refused to consider for the first time on appeal a claim that the United States violatedthe Vienna Convention. Powell filed a petition for review, which was docketed at C.A.No. 11-3765. Meanwhile, shortly after he filed the petition for review in C.A. No. 11-3765,3 The BIA also noted that Powell did not contest the IJ‟s determination that hisaggravated felony convictions rendered him ineligible for asylum, cancellation ofremoval, a waiver of inadmissibility, and voluntary departure. Powell did, however,“claim[] a due process violation because his criminal convictions served as a basis toremove him,” but the Board noted that he had not challenged the IJ‟s factual findings orlegal conclusions concerning those convictions. 3
  14. 14. Powell filed with the BIA a motion for reconsideration of its order of September 30,2011. In the motion for reconsideration, Powell primarily claimed that the IJ and the BIAhad erred by failing to notify him that he could apply for a “U visa.” Powell noted thatwhile his case was pending before the Immigration Court, he had informed the IJ that hehad been the victim of various crimes and had assisted law enforcement authorities in theapprehension of the perpetrators.4 The BIA denied the motion for reconsideration, noting that the United StatesCitizenship and Immigration Service (“USCIS”) has sole jurisdiction over U visaapplications and that the filing of such an application has no effect on the Department ofHomeland Security‟s (“DHS”) authority to execute a final removal order. In addition, theBoard informed Powell that individuals, like himself, who are subject to a final order ofremoval are not precluded from seeking a U visa, that he could request a stay of removalfrom the USCIS, 8 C.F.R. §§ 214.14(c)(1)(ii) & 1241.6(a), and that he could move toreopen and terminate the removal proceedings if the U visa application was granted, 8C.F.R. § 214.14(c)(5)(i). The Board also reaffirmed that Powell‟s military service andoath of allegiance did not render him a “national” of the United States, and again rejectedPowell‟s attempt to rely on new evidence. Powell filed a timely petition for review of the4 For instance, Powell claimed that in 1985, he “was assailed by an American citizen whoadvertently threw a concoction of thermal liquid acid on my countenance and on mybody.” Powell also asserted that in 1990 he “was shot . . . with a gun by an Americancitizen.” Powell stated that he “assisted law enforcement in the apprehension” of theperpetrators in both instances. U visas “grant temporary lawful resident status to alienvictims of crime who assist in an investigation or prosecution.” Torres-Tristan v. Holder,656 F.3d 653, 655 (7th Cir. 2011) (citing INA § 101(a)(15)(U) [8 U.S.C.§ 1101(a)(15)(U)]). 4
  15. 15. BIA‟s denial of his motion for reconsideration. That petition was docketed at C.A. No.11-4560, and consolidated for all purposes with C.A. No. 11-3765. We generally lack jurisdiction to review a final order of removal against an alien,like Powell, who is removable for having committed a criminal offense covered in INA§ 237(a)(2). INA § 242(a)(2)(C) [8 U.S.C. § 1252(a)(2)(C)]. We retain jurisdiction,however, to review constitutional claims, “pure questions of law,” and “issues ofapplication of law to fact, where the facts are undisputed and not the subject ofchallenge.” Kamara v. Att‟y Gen., 420 F.3d 202, 211 (3d Cir. 2005). However, “[o]urjurisdiction in that respect is „narrowly circumscribed‟ in that it is limited to „colorableclaims or questions of law.‟” Pareja v. Att‟y Gen., 615 F.3d 180, 186 (3d Cir. 2010)(quoting Cospito v. Att‟y Gen., 539 F.3d 166, 170 (3d Cir. 2008) (per curiam)) (quotationmarks and citation omitted in original). A claim is not colorable if “it is immaterial andmade solely for the purpose of obtaining jurisdiction or is wholly insubstantial andfrivolous.” Id. (internal quotation marks and citation omitted). We must thereforedetermine whether Powell‟s petitions raise a colorable legal or constitutional question, asdistinguished from factual questions over which we lack jurisdiction. See Alaka v. Att‟yGen., 456 F.3d 88, 102 (3d Cir. 2006). In the first petition for review, Powell challenges the BIA‟s denial of hisapplication for protection under the CAT.5 The question of the likelihood of torture is a5 In his appeal to the BIA, Powell did not challenge the IJ‟s denial of withholding ofremoval. Therefore, he failed to exhaust his administrative remedies as to that claim.Hoxha v. Holder, 559 F.3d 157, 159 (3d Cir. 2009) (holding that an alien must “raise orexhaust his or her remedies as to each claim or ground for relief [before the BIA] if he or 5
  16. 16. mixed one, comprised of a factual component (“what is likely to happen to the petitionerif removed”) and a legal one (“does what is likely to happen amount to the legaldefinition of torture”). Kaplun v. Att‟y Gen., 602 F.3d 260, 271 (3d Cir. 2010). Wehave jurisdiction, therefore, to the extent that Powell‟s pro se brief challenges the BIA‟sconclusion that the evidence of possible torture was insufficient to establish eligibility forCAT relief. Toussaint v. Att‟y Gen., 455 F.3d 409, 412 n.3 (3d Cir. 2006). “Torture isdefined as any act by which severe pain or suffering, whether physical or mental, isintentionally inflicted on a person for such purposes as obtaining . . . information or aconfession, punishing . . . for an act, . . . intimidating or coercing, . . . or for any reasonbased on discrimination of any kind.” 8 C.F.R. § 1208.18(a)(1). The torture must be“inflicted by or at the instigation of or with the consent or acquiescence of” an officialperson. Id. Powell alleged that his father, who is now deceased, wanted to form a newpolitical party because he believed that the two existing parties did not meet the needs ofthe Jamaican people. Powell‟s father immigrated to the United States before Powell, andcontinued his political activities in this country. As a result of those activities, Powell‟sfather made political enemies. Nevertheless, there was no evidence suggesting thatPowell is likely to be tortured as a result of his father‟s past political activities. Notably,Powell‟s father was never threatened or assaulted. Moreover, Powell conceded that heshe is to preserve the right of judicial review of that claim.”) (citation omitted). Failure toexhaust also prevents us from considering Powell‟s claim that he is entitled to reliefunder former INA § 212(c) [8 U.S.C. § 1182(c)], which he raised for the first time in hisbrief to this Court. Castro v. Att‟y Gen., 671 F.3d 356, 365 (3d Cir. 2012). 6
  17. 17. did not know whether his father‟s political enemies were still in positions of power and, ifso, whether they would impute his father‟s political opinion to him. Under thesecircumstances, we conclude that the BIA properly determined that the evidence Powellpresented about what is likely to happen did not meet the legal definition of torture. Powell also appears to raise a legal challenge to the BIA‟s conclusion that hisongoing pursuit of post-conviction relief from the convictions which formed the basis forremovability did not negate the finality of those convictions for immigration purposes. Inhis brief, Powell notes that he is currently challenging his convictions in this Court and inthe appellate courts of New York and New Jersey. Those challenges, however, have nobearing on the conclusion that Powell is removable for having committed aggravatedfelonies and crimes involving moral turpitude. Indeed, pendency of post-convictionmotions or other forms of collateral attack does not negate the finality of a conviction forimmigration purposes. Paredes v. Att‟y Gen., 528 F.3d 196, 198-99 (3d Cir. 2008). In his second petition for review, Powell claims that the BIA should have grantedhis motion for reconsideration because he qualified for a U visa. We review the denial ofthe motion to reconsider for abuse of discretion. Borges v. Gonzales, 402 F.3d 398, 404(3d Cir. 2005). Under this standard, we may reverse the BIA‟s decision only if it is“arbitrary, irrational, or contrary to law.” Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.2004). Powell claims that he was denied due process because the IJ failed to advise himthat he could apply for a U visa based on his status as a crime victim who assisted in theinvestigation of the perpetrators. IJs have a duty to inform aliens appearing before themof their potential eligibility for certain forms of relief. Bonhometre v. Gonzales, 414 F.3d 7
  18. 18. 442, 448 (3d Cir. 2005) (noting BIA authority for the proposition that “[a]n IJ has a dutyto inform aliens of potential forms of relief for which they are apparently eligible . . . .”).Here, Powell is complaining about the IJ‟s failure to advise him about eligibility for a Uvisa. Importantly, however, eligibility for a U visa falls outside the IJ‟s authority.Indeed, as the BIA noted, USCIS has sole jurisdiction over U visas. 8 C.F.R.§ 214.14(c)(1). In addition, the filing of an application for a U visa has no effect onDHS‟s authority to execute a final removal order. § 214.14(c)(1)(ii). Furthermore, if a Uvisa application is approved, the alien can move to reopen and terminate the removalproceedings. § 214.14(c)(5)(i). Thus, the IJ‟s failure to inform Powell of his eligibilityfor a U visa did not affect his ability to seek or obtain such relief. Accordingly, we agreewith the BIA that the IJ had no duty under the circumstances presented here to advisePowell of his potential eligibility for a U visa. For the foregoing reason, we will deny the petition for review. Powell‟s repeatedrequest for a stay of removal is denied. 8