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Keywords

precedentappealwilldomestic violenceasylumvisa

precedenthearingmotionparoleasylumvisarespondent

Related Cases

Rocha v. Barr

Facts

Guerra Rocha entered the U.S. with her two sons in June 2016, fleeing persecution from a cartel in Mexico. After experiencing domestic violence from a friend in Chicago, she relocated to Miami but was later asked to return to assist in the prosecution of her abuser. She applied for asylum and a U-visa, but her immigration judge found her ineligible for relief. The BIA subsequently denied her appeal and request for a remand to consider her U-visa application.

Guerra Rocha openly entered the United States with her two sons, Jovany and Carlos, in June 2016. She presented herself at a point of entry in Arizona, asserting that she had fled from persecution at the hands of Mexico's Los Rojos cartel. She sought asylum, and after passing a credible-fear interview, she was paroled into the United States while she waited for an immigration hearing.

Issue

Did the BIA abuse its discretion by failing to adequately consider Guerra Rocha's prima facie eligibility for a U-visa when denying her request for a continuance?

The central issue before us is whether the BIA adequately considered and applied its own precedents in disposing of Guerra Rocha's case.

Rule

The likelihood that an alien will receive pursued collateral relief and that such relief will materially affect the outcome of removal proceedings is the primary consideration for granting a continuance.

The BIA's decision Matter of Sanchez Sosa , 25 I. & N. Dec. 807 (B.I.A. 2012) , is its last word on how an applicant for a U visa may obtain a continuance. It instructs that the IJ must first ask whether DHS supports or opposes the applicant's motion for a remand. If DHS does not oppose the motion, then 'the proceedings … should be continued … in the absence of unusual, clearly identified, and supported reasons for not doing so.' Id. at 813.

Analysis

The court determined that the BIA's analysis of Guerra Rocha's case was insufficient and did not meet the standards set forth in its own precedents. The BIA failed to address the critical question of the likelihood that Guerra Rocha's U-visa application would be granted, which is essential for determining whether a continuance should be granted.

The BIA performed only a cursory analysis of Guerra Rocha's caseone that fell considerably short of Sanchez Sosa 's requirements. It dispensed with her argument in a single sentence: '[C]onsidering all relevant factors, including the DHS's opposition to the motion, the collateral nature of the relief sought through the U-visa petition, the timing of the request, and the likely delay of these administrative proceedings, the respondent has not shown that a remand is warranted.'

Conclusion

The court granted Guerra Rocha's petition and remanded the case for further proceedings, emphasizing that the BIA must adhere to its own established criteria.

We therefore GRANT Guerra Rocha's petition and REMAND for further proceedings consistent with this opinion.

Who won?

Guerra Rocha prevailed because the court found that the BIA had abused its discretion by not following its own precedents regarding the evaluation of her eligibility for a U-visa.

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