L.D.G. v. Holder, Waiver of Inadmissibility Under Sec. 212(d)(3)(A)

Posted by: Norka M. Schell, NYC Immigration Lawyer
Law Offices of Norka M. Schell, LLC
Tel. (212)564-1589
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L.D.G. v. Holder (7th Cir. Mar. 12, 2014)

The Seventh Circuit granted a petition for review of the Board’s decision affirming that an Immigration Judge lacked jurisdiction to adjudicate an application for a waiver of inadmissibility under section 212(d)(3)(A) of the Act. The petitioner applied for a nonimmigrant visa under section 101(a)(15)(U) of the Act but was found ineligible because she had been convicted of a drug offense. She sought a waiver of inadmissibility, which, if granted, would allow for approval of the U visa application. The Immigration Judge found that he lacked jurisdiction to consider the request for a waiver. The Board affirmed, noting that the petitioner had not been denied an initial opportunity to seek a waiver of inadmissibility with the DHS under section 212(d)(14) of the Act. The Board additionally held that since the petitioner’s illegal entry was the cause of her inadmissibility, she was applying for a retroactive waiver, which the Seventh Circuit had found to be barred in Borrego v. Mukasey, 539 F.3d 689 (7th Cir. 2008). The court first clarified that the petitioner was not seeking a retroactive waiver by distinguishing the facts in her case from those in Borrego. Borrego sought a waiver after a visa had been improvidently issued while she was subject to a 5-year bar from entering the U.S., but this petitioner had not yet been issued a visa. The court explained that retroactive waivers “relieve . . . the effects of past conduct, but this does not make the waivers themselves retroactive.” 

Rather, a waiver is retroactive when it “works to salvage relief previously granted for which the applicant was not qualified, and thus was void from the outset.” Regarding the question of jurisdiction, the court found that deference was not warranted, because the Board (which is part of Department of Justice) was not interpreting its own agency’s regulation, but rather one issued by the DHS. The court held that section 212(d)(14), which grants the Secretary of the DHS authority to waive most statutory grounds of inadmissibility for U visa applicants, does not limit section 212(d)(3)(A), which grants the Attorney General broad discretion to grant waivers of inadmissibility to nonimmigrant visa applicants. The court further noted that a scheme authorizing one agency to grant a waiver in order to apply for a visa from another agency “is neither unprecedented nor unique.” The court therefore vacated the removal order and remanded the case for the Immigration Judge to consider the waiver request.