On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A098-266-266
Submitted February 9, 2010*fn1 -- San Francisco, California
Before: Alex Kozinski, Chief Judge, David R. Thompson and M. Margaret McKeown, Circuit Judges.
Hyoun Kyung Lee petitions for review of the decision of the Board of Immigration Appeals ("BIA") affirming the Immigration Judge's ("IJ") order of removal. Lee argues that the IJ erred in finding her ineligible for U visa interim relief, a temporary form of relief that was previously made available to immigrant victims of crime. Because the IJ had no authority to grant Lee U visa interim relief, we deny the petition for review.
Lee, a native and citizen of South Korea, was admitted to the United States at San Francisco, California in October 2003, with authorization to remain in the country for up to six months. She overstayed her visa, and the government commenced removal proceedings against her in July 2005. In proceedings before the IJ, Lee conceded removability, but obtained a continuance in order to seek U visa interim relief.
Congress created the "U" nonimmigrant classification for certain victims of criminal activity with the enactment of the Victims of Trafficking and Violence Protection Act of 2000, Pub. L. 106-386, 114 Stat. 1464 (2000). Under the statute, a non-citizen is entitled to a U visa if the Secretary of the Department of Homeland Security ("DHS") determines that she has suffered "substantial physical or mental abuse" as a result of qualifying criminal activity and can show that she "has been helpful, is being helpful, or is likely to be helpful" to law enforcement authorities that are investigating or prosecuting the crime. 8 U.S.C. § 1101(a)(15)(U)(i).
At the time Lee filed her application, DHS had not yet promulgated regulations implementing the U visa statute.*fn2
Instead, the agency afforded individuals who established prima facie eligibility for a U visa with interim relief-in this case, deferred action-to prevent their removal from the United States pending the adoption of procedures to process their visa applications. See generally Memorandum from Michael D. Cronin, Acting Executive Assoc. Comm'r, Office of Programs to Michael A. Pearson, Executive Assoc. Comm'r, Office of Field Operations, U.S. Dep't of Justice Immigration and Naturalization Serv. ("Cronin Memo") (Aug. 30, 2001) (establishing interim relief program).
Lee submitted an application for interim relief to the arm of DHS responsible for issuing of visas, U.S. Citizenship and Immigration Services ("USCIS"). Lee claimed relief on the basis of her usefulness to a federal investigation of a sex trafficking ring that had victimized her. On February 2, 2006, USCIS denied Lee's application for lack of sufficient evidence of several predicates for U visa relief, including, according to the denial letter, proof of "substantial physical or mental abuse" as a result of her victimization; proof that she "possess[ed] information concerning that criminal activity;" and proof that she had been, was being, or was likely to be helpful to law enforcement authorities investigating or prosecuting the crime. Lee also failed to submit the required certification from law enforcement authorities of her assistance. USCIS indicated that Lee could submit further documentation to overcome the deficiencies in her application.
Lee obtained another continuance from the IJ to pursue her U visa application. In late March 2006, Lee sent USCIS a report from a clinical social worker attesting to the psychological harm she suffered at the hands of her sex ...