On April 3, 2019, the Eighth Circuit granted our appeal in Caballero-Martinez v. Barr, a case involving a pending U Visa. This published decision offers important guidance to immigration judges in the Eighth Circuit—including those in Kansas City, where I practice.
The Issue
The issue is a common one: a person in removal proceedings becomes the victim of a violent crime and applies for a U Visa. Immigration judges can’t grant U Visas—that’s handled by USCIS. But removing someone who’s eligible for legal status makes no sense.
In Matter of Sanchez-Sosa, the BIA said judges should grant a continuance when a U Visa has been filed and appears approvable. That precedent is still binding. But as USCIS wait times have ballooned, judges have been increasingly unwilling to follow Sanchez-Sosa.
In this case, Mr. Caballero-Martinez became eligible for a U Visa while his appeal was pending at the BIA. He filed the application and submitted proof that it was approvable. But the BIA refused to delay his case—without offering any real explanation.
We appealed to the Eighth Circuit. We raised several issues, including the need to clarify the standard of review for motions to reopen and to allow more evidence for a cancellation of removal claim. The court declined those.
But on the U Visa issue, the court was concerned. At oral argument, the panel questioned the government’s lawyer about why the BIA wouldn’t simply wait for USCIS to act on the visa.
The Conclusion
This week, the court ruled in our favor. It explained that while the BIA doesn’t need to “write a novel,” but it must explain why it denies relief—especially when binding precedent like Sanchez-Sosa supports a continuance. The court wrote: “Sanchez-Sosa suggests a completed [U visa] application weighs in favor of pausing the removal process.”
As a result, our client no longer has a final order of removal.