In a published decision on April 3, 2019 the Eighth Circuit granted our appeal in a case involving a pending U Visa, Caballero-Martinez v. Barr. The decision will help provide guidance to immigration judges in the Eighth Circuit, including Kansas City where I practice.
The issue is a common one: an immigrant in removal proceedings is the victim of a violent crime and becomes eligible for a U visa. Immigration Judges can’t grant U visas – they’re handled by a separate agency. But deporting a person who is eligible for permission to stay in the United States doesn’t make any sense.
Thankfully, the BIA decided in Matter of Sanchez-Sosa that Immigration Judges should grant a continuance when the U Visa has been filed and appears to be approvable. That decision is still binding. But as the wait times for USCIS to process U Visas have grown, Immigration Judges and the BIA have shown less and less willingness to follow the standard required by Sanchez-Sosa.
In the Caballero-Martinez case, the immigrant had an appeal pending at the BIA when he became eligible for a U Visa. He complied with the law, submitted his visa application, and then filed proof with the BIA that the visa was pending and approvable. The BIA said it still would not delay proceedings, but it didn’t say why.
We appealed the decision to the Eighth Circuit. We raised several other issues too, trying to get the court to expand the standard of review for motions to reopen and to give our client a chance to submit more evidence for cancellation of removal claim. The Eighth Circuit declined those issue.
But, the Eighth Circuit was unsatisfied with the BIA’s silence on the U visa issue. At oral argument in December, the three-judge panel peppered the Department of Justice attorney with questions about why the BIA would not delay the case to give time for a U Visa to be adjudicated.
This week, the Eighth Circuit granted the appeal. It said that while the Board doesn’t have to write a novel on every issue raised, it has to at least address them in a way that informs the immigrant why he lost his appeal. The Eighth Circuit explained that in its view, “Sanchez-Sosa suggests a completed [U visa] application weighs in favor of pausing the removal process.”
The result is that our client doesn’t have a final order of removal any more. And he’ll get another chance to argue that he should be allowed to remain with his wife and kids in the United States. These victories are rare in Circuit Court, where the majority of appeals are dismissed. We’re excited for this result, both for our client and for the way this decision will now help guide Immigration Judge decisions on this issue in Kansas City and elsewhere.