Patricia Garcia Cabrera v. Merrick Garland


PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 20-1943 PATRICIA GARCIA CABRERA, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Argued: September 21, 2021 Decided: January 6, 2022 Before MOTZ, QUATTLEBAUM, and RUSHING, Circuit Judges. 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. 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. 2 DIANA GRIBBON MOTZ, Circuit Judge: 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, 3 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 …

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