Cabrera v. Garland

21 F.4th 878

Patricia Garcia CABRERA, Petitioner,

v.Merrick B. GARLAND, Attorney General, Respondent.

No. 20-1943

United States Court of Appeals, Fourth Circuit.

Argued: September 21, 2021

Decided: January 6, 2022

ARGUED: Melody Busey, DEVINE & BEARD LAW OFFICE, Charleston, South Carolina, for Petitioner. Sherease Rosalyn Pratt, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Mark J. Devine, DEVINE & BEARD LAW OFFICE, Charleston, South Carolina, for Petitioner. Jeffrey Bossert Clark, Acting Assistant Attorney General, Sabatino F. Leo, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Before MOTZ, QUATTLEBAUM, and RUSHING, Circuit Judges.

DIANA GRIBBON MOTZ, Circuit Judge:

Petition for review granted; vacated and remanded to the Board of Immigration Appeals for further proceedings by published opinion. Judge Motz wrote the opinion, in which Judge Quattlebaum concurred. Judge Rushing wrote an opinion concurring in the judgment.

This petition arises out of an immigration judge's (IJ) refusal (affirmed by the Board of Immigration Appeals (BIA)) to continue the deportation proceedings of a movant that the IJ himself recognized was likely to obtain a U visa from the United States Citizenship and Immigration Services (USCIS). For the reasons that follow, we hold that the BIA and IJ abused their discretion in denying the motion for a continuance, vacate the BIA's order, and remand the case to the BIA for further proceedings consistent with this opinion.

I.

On July 24, 2014, Patricia Garcia Cabrera, then a 35-year-old native and citizen of Mexico, legally entered the United States on a B-2 visa, which authorized her to remain in the United States until January 23, 2015. She overstayed the visa without authorization.

On December 27, 2015, while Garcia Cabrera resided in South Carolina, her boyfriend physically assaulted her in front of her young child. Garcia Cabrera contacted the police. The responding officer found her with physical injuries consistent with domestic abuse, and Garcia Cabrera's child told the officer that the man had grabbed Garcia Cabrera and choked her. The police arrested Garcia Cabrera's boyfriend and charged him with criminal domestic violence; Garcia Cabrera aided the police in prosecuting him.

Garcia Cabrera's efforts assisting law enforcement rendered her eligible to apply for a U visa. U visas are available to noncitizens who have "suffered substantial physical or mental abuse as a result of having been a victim of criminal activity" and who have "been helpful, [are] being helpful, or [are] likely to be helpful" to authorities investigating or prosecuting that crime. 8 U.S.C. § 1101(a)(15)(U). Before filing a U visa application, an applicant must obtain a certification from the relevant law enforcement authority attesting to this help. 8 U.S.C. § 1184(p)(1). Garcia Cabrera obtained this certification on December 4, 2017.

An applicant's desire for a U visa is understandable. Once USCIS grants a U visa, the visa holder becomes a lawful temporary resident "for a period of not more than 4 years." 8 U.S.C. § 1184(p)(6). U visa holders also become eligible for several forms of related relief.¹

On February 12, 2018, before Garcia Cabrera filed her application for a U visa, the Department of Homeland Security (DHS) issued a notice to appear, charging her with overstaying her B-2 visa and ordering her to appear before an IJ to determine whether she would be deported. Less than a month later — on or around March 7, 2018 — Garcia Cabrera filed her U visa application with USCIS.

In June and July 2018, Garcia Cabrera made three appearances before an IJ in Atlanta, Georgia. At the third appearance, Garcia Cabrera moved for a venue change to Charlotte, North Carolina. The IJ granted the venue change, noting in his order that the new IJ should schedule a status update in June 2019 due to the pending U visa application.

The new IJ disregarded the note to set a status update in June 2019, and instead set a hearing for September 27, 2018. Because her U visa application was pending, Garcia Cabrera moved to continue the deportation proceedings. The IJ denied the motion. Before her hearing, Garcia Cabrera renewed her motion for a continuance. At the hearing, the IJ again denied the motion, holding that even though there was a "significant probability" that USCIS would grant the U visa, Garcia Cabrera had failed to show good cause for a continuance. The IJ entered a deportation order.

Garcia Cabrera appealed from the denial of her motion for a continuance to the BIA. The BIA dismissed the appeal, agreeing with the IJ that she had failed to show good cause for a continuance. Garcia Cabrera then filed a petition for review with this court, asserting that the BIA and IJ abused their discretion in denying her a continuance.²

II.

An IJ may grant a continuance of deportation proceedings for "good cause shown." 8 C.F.R. § 1003.29. We review a denial of a motion for a continuance for an abuse of discretion. Onyeme v. INS , 146 F.3d 227, 231 (4th Cir. 1998). The BIA or an IJ abuse their discretion if, inter alia , they deny the motion "without a rational explanation" or "inexplicably depart[ ] from established policies." Lendo v. Gonzales , 493 F.3d 439, 441 (4th Cir. 2007) (quoting Onyeme , 146 F.3d at 231 ).

In a series of precedential opinions, the Attorney General and BIA have carefully delineated policies governing when the BIA and IJs should grant a motion for a continuance on the basis of pending collateral relief, such as an application for a U visa. These opinions bind IJs and all DHS officers and employees and "serve as precedents in all proceedings involving the same issue or issues." 8 C.F.R. § 1003.1(g)(1)–(2). In its 2012 ruling in Matter of Sanchez Sosa , the BIA held that there is a "rebuttable presumption" that a movant who has filed "a prima facie approvable application [for a U visa] with the USCIS will warrant a favorable exercise of discretion for a continuance for a reasonable period of time." 25 I. & N. Dec. 807, 815 (BIA 2012).

The Attorney General and BIA have reaffirmed this principle in more recent decisions. In Matter of L-A-B-R- , the Attorney General has emphasized that, when adjudicating a motion for a continuance on the basis of any type of pending collateral relief, the "principal focus [should] be on the likelihood that the collateral relief will be granted and will materially affect the outcome of the removal proceedings." 27 I. & N. Dec. 405, 406 (A.G. 2018). The Attorney General also listed other "germane secondary factors" that the BIA and IJs should consider, including whether the movant "has exercised reasonable diligence in pursuing that relief, DHS's position on the motion, the length of the requested continuance, and the procedural history of the case." Id. at 413, 415. But the Attorney General made clear that the secondary factors are not of "equal importance" to the primary ones. Id. at 413.

In January 2020, after the IJ denied Garcia Cabrera's motion but before the BIA affirmed the IJ's decision, the BIA reaffirmed Matter of L-A-B-R- 's holding that "the primary factors [it] should consider in assessing whether to grant ... a continuance are: ‘(1) the likelihood that the alien will receive the collateral relief, and (2) whether the relief will materially affect the outcome of the removal proceedings.’ " Matter of L-N-Y- , 27 I. & N. Dec. 755, 757 (BIA 2020) (quoting Matter of L-A-B-R- , 27 I. & N. Dec. at 413 ). It noted that the primary factors are "not dispositive," especially if "there are relevant secondary factors that weigh against continuing the proceedings," but nonetheless made clear that it "[c]onsider[ed] and balanc[ed] the relevant primary and secondary factors" in that case. Id. at 757–59.

III.

As an initial matter, Garcia Cabrera and the Government disagree as to which decision is before us for review — just the BIA's decision, or both the BIA's and IJ's decisions. The dispute revolves around whether the BIA "adopted" the IJ's decision. If the BIA "affirms and adopts an IJ's decision and includes its own reasons for affirming," this court reviews both decisions. Yanez-Marquez v. Lynch , 789 F.3d 434, 444 (4th Cir. 2015). But if the BIA does not adopt the IJ's decision and instead "offer[s] its own reasons for denying relief," this court reviews only the BIA's decision. Cabrera Vasquez v. Barr , 919 F.3d 218, 223 (4th Cir. 2019) ; see also Wambura v. Barr , 980 F.3d 365, 368 n.2 (4th Cir. 2020) (noting that, where the BIA issues "its own detailed opinion affirming the IJ with further reasoning of its own but without expressly adopting the IJ's opinion," this court focuses its review on the BIA's decision).

Here, the BIA did not issue a "detailed opinion ... with further reasoning of its own." Rather, in a brief decision, the BIA indicated that it "agree[d] with the Immigration Judge's decision" and concluded that there was "no reason to disturb" that decision but did not explicitly state that it adopted the IJ's decision. Accordingly, the record is somewhat unclear as to whether the BIA adopted the IJ's decision. We need not resolve this ambiguity because, regardless of whether we review solely the BIA's opinion or both the BIA's and IJ's opinions, the outcome is the same.

A.

First, we consider the BIA's opinion. In its two-page opinion, the BIA acknowledged the importance of the primary factors. Indeed, the BIA cited Matter of L-A-B-R- and expressly stated that "the two principal factors for consideration in determining whether good cause exists for a continuance to await the resolution of a collateral matter are: (1) the likelihood that the alien will receive the collateral relief, and (2) whether the relief will materially affect the outcome of the removal proceedings." But the BIA failed to make any findings as to either of these primary factors.

...