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Court Vacates BIA Ruling That IJ Was Without Authority to Grant a Waiver of Inadmissibility

The Eleventh Circuit granted the petition for review and found the BIA erred in concluding that immigration judges (IJs) cannot have concurrent jurisdiction over a waiver of inadmissibility for U visa applicants, stating the BIA did not address or analyze the plain meaning of INA §212(d)(3).

Nonimmigrant Waivers Not allowed in Immigration Court

Matter of KHAN,  26 I&N Dec. 797 (BIA 2016)
Immigration Judges do not have authority to adjudicate a request for a waiver of inadmissibility under section 212(d)(3)(A)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1182(d)(3)(A)(ii) (2012), by a petitioner for U nonimmigrant status.

BIA Says IJs Cannot Adjudicate Section 212(d)(3)(A)(ii) Waiver by Petitioner for U Status

In a precedent decision issued today, the BIA held that IJs lack the authority to adjudicate a request for a waiver of inadmissibility under INA §212(d)(3)(A)(ii) by a petitioner for U nonimmigrant status. The BIA also concluded that the Seventh Circuit’s decision in L.D.G. v. Holder did not expressly find the language of §212(d)(3)(A) to be unambiguous, which would have left no room for agency discretion. Accordingly, the BIA will apply its ruling in this decision to cases nationwide, including cases arising in the Seventh Circuit.

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