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Man v. Barr

United States Court of Appeals, Ninth Circuit

October 24, 2019

Philip Chi Yan Man, Petitioner,
v.
William P. Barr, Attorney General, Respondent.

          Argued and Submitted March 15, 2019 San Francisco, California

          On Petition for Review of Orders of the Board of Immigration Appeals Agency No. A075-538-479

         COUNSEL

          Zachary Nightingale (argued) and Amalia Wille, Van Der Hout Brigagliano & Nightingale LLP, San Francisco, California, for Petitioner.

          Tim Ramnitz (argued), Attorney; Greg D. Mack, Senior Litigation Counsel; Terri J. Scadron, Assistant Director; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

          Andrew Yaphe and Serge Voronov, Davis Polk & Wardwell LLP, Menlo Park, California; Sharon Katz, Davis Polk & Wardwell LLP, New York, New York; Jayashri Srinkantiah, Stanford Law School, Stanford, California; Iylce Shugall, Community Legal Services in East Palo Alto, East Palo Alto, California; Carmen Maria Rey, Sanctuary for Families, New York, New York; for Amici Curiae Asista, Asian Pacific Institute on Gender-Based Violence, California Partnership to End Domestic Violence, Freedom Network USA, Her Justice, National Network to End Domestic Violence, New York State Coalition Against Domestic Violence, and National Immigrant Justice Center.

          Before: J. Clifford Wallace, Eugene E. Siler, [*] and M. Margaret McKeown, Circuit Judges.

         SUMMARY[**]

         Immigration

         Denying Philip Man's petitions for review of three orders of the Board of Immigration Appeals, the panel held that, in removal proceedings commenced against a non-citizen after the non-citizen has already entered the country, an Immigration Judge lacks authority to grant the non-citizen a U visa waiver of inadmissibility under 8 U.S.C. § 1182(d)(3)(A)(ii).

         In one order on review, the Board dismissed Man's appeal of an IJ's denial of Man's application for adjustment of status, concluding that Man's conviction under California Health and Safety Code § 11359 was a drug trafficking aggravated felony that made him inadmissible and ineligible for adjustment of status. The panel denied Man's petition for review of this order, noting that Man acknowledged that his petition was controlled by Roman-Suaste v. Holder, 766 F.3d 1035 (9th Cir. 2014).

         In the other two orders on review, the Board denied Man's requests to reopen his removal proceedings so that he could seek a waiver of inadmissibility to obtain a U visa. In relevant part, the Board denied reopening on the ground that an IJ would lack authority to consider Man's request for a U visa waiver if his case were reopened. In doing so, the Board relied on Matter of Khan, 26 I. & N. Dec. 797 (BIA 2016), which held that an IJ lacks authority to grant a waiver of inadmissibility under 8 U.S.C. § 1182(d)(3)(A)(ii) to a petitioner for a U visa who is in the United States.

         Noting that Matter of Khan is entitled to deference if the relevant statutory provisions are ambiguous and the holding is reasonable, the panel concluded that ambiguity reigns here: Congress has not explained how to reconcile its grant of a specific inadmissibility waiver and sole grant of U visa adjudicatory power to the Secretary of Homeland Security, 8 U.S.C. § 1182(d)(14), with the pre-existing inadmissibility waiver power vested in the Attorney General for aliens who are seeking admission, 8 U.S.C. § 1182(d)(3)(A)(ii).

         The panel also agreed with the Board's reasoning in Matter of Khan, noting that the Board explained that: 1) it had previously held that an IJ's authority to adjudicate waivers under § 1182(d)(3)(A)(ii) is limited to when an inadmissible nonimmigrant alien seeking admission at a port of entry has been denied a waiver and has been placed in proceedings where a waiver request has been renewed before the IJ; and 2) the conditions under which the Attorney General has delegated authority to IJs to adjudicate such waivers are circumscribed by regulations that limit an IJ's authority to adjudicate the waiver to narrow and specific circumstances that are inapplicable to a petitioner for a U visa.

         With its holding, the panel joined the Third Circuit, which considered this question and came to the same conclusion as the Board, and the panel declined to follow the ...


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