Ramirez Sanchez v. Mukasey ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MANUEL JOSE LUIS RAMIREZ 
SANCHEZ; LETICIA RAMIREZ, No. 06-70396
Petitioners, Agency Nos.
v.  A73-988-052
MICHAEL B. MUKASEY,* Attorney A73-985-551
General,
Respondent.

MANUEL JOSE LUIS RAMIREZ 
SANCHEZ; LETICIA RAMIREZ, No. 06-73026
Petitioners, Agency Nos.
v.  A73-988-052
MICHAEL B. MUKASEY,* Attorney A73-985-551
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
November 8, 2007—Pasadena, California
Filed December 4, 2007
Before: Before: Betty B. Fletcher, Stephen Reinhardt, and
Pamela Ann Rymer, Circuit Judges.
*Michael B. Mukasey is substituted for his predecessor, Alberto R.
Gonzales, as Attorney General of the United States, pursuant to Fed. R.
App. P. 43(c)(2).
15905
15906 RAMIREZ SANCHEZ v. MUKASEY
Per Curiam Opinion
15906 RAMIREZ SANCHEZ v. MUKASEY
COUNSEL
Juan A. Laguna, Esq., Law Offices of Juan A. Laguna, Santa
Ana, California, for the petitioner.
Peter D. Keisler, Esq., James A. Hunolt, Esq., Kristin K. Edi-
son, Esq., Office of Immigration Litigation, Civil Division,
RAMIREZ SANCHEZ v. MUKASEY 15907
United States Department of Justice, Washington, D.C., for
the respondent.
OPINION
PER CURIAM:
[1] When the proceedings before the Board of Immigration
Appeals (BIA) took place in this case, neither petitioners nor
the BIA had the benefit of regulatory guidance regarding U
Visas.1 The BIA declined to remand or reopen petitioners’
case — despite their outstanding U Visa application —
because petitioners based their U Visa application on an
offense that was not charged in the criminal complaint. As the
preamble to the regulations makes clear, however, inclusion
of the qualifying crime in the indictment or complaint is not
a predicate to U Visa relief. 72 Fed. Reg. 53018 (Sept. 17,
2007).
1
An alien who is a victim of a “qualifying crime” and who cooperates
with law enforcement is eligible for temporary “U” nonimmigrant status,
which allows the alien to remain lawfully in the country to assist in the
investigation or prosecution of the crime. 8 U.S.C. § 1101(a)(15)(U). A
petition for a U Visa must include a certification from law enforcement
stating that the petitioner “has been helpful, is being helpful, or is likely
to be helpful” in the investigation or prosecution of the criminal activity.
8 U.S.C. § 1184(p). An alien with U nonimmigrant status may remain in
the United States for up to four years. 8 U.S.C. § 1184(p)(6). This period
may be extended upon certification from law enforcement that the alien’s
continued presence is required. The Department of Homeland Security
may adjust an alien to permanent resident status if the alien has been phys-
ically present for at least 3 years since the date of admission as a nonimmi-
grant and if “the alien’s continued presence in the United States is justified
on humanitarian grounds, to ensure family unity, or is otherwise in the
public interest.” 8 U.S.C. § 1255(m)(1).
15908 RAMIREZ SANCHEZ v. MUKASEY
[2] The regulations also make clear that although United
States Citizenship and Immigration Services (USCIS) has sole
jurisdiction over the issuance of U Visa petitions, the BIA and
the Immigration Judge have the authority to continue their
proceedings at the request of a petitioner who has applied for
a U Visa or to terminate proceedings without prejudice at the
joint request of the petitioner and Immigration and Customs
Enforcement (ICE). 8 C.F.R. § 214.14(c)(i); see also 72 Fed.
Reg. 53022 n.10 (“While this rule specifically addresses joint
motions to terminate, it does not preclude the parties from
requesting a continuance of the proceedings.”); 8 C.F.R.
§ 214.14(c)(ii)(providing that a U Visa petitioner who is sub-
ject to a final removal order may request a stay of removal).
[3] Although we do not have jurisdiction to review petition-
ers’ challenge to the BIA’s hardship determinations, see
Romero-Torres v. Ashcroft, 327 F.3d 887, 890-91 (9th Cir.
2003), and our precedent forecloses their argument that the
BIA’s construction of the hardship standard violates due pro-
cess, see Ramirez-Perez v. Ashcroft, 336 F.3d 1001, 1006 (9th
Cir. 2003), we remand to the BIA to consider petitioners’
request in light of the new U Visa regulations as a request for
a continuance, or to consider any joint motion for a stay or termi-
nation.2 On remand, petitioners may submit to the BIA any
additional evidence that they may have with respect to their
application for a U Visa. The papers previously submitted by
petitioners to the BIA and the IJ shall be deemed part of the
record before it.
REMANDED.
2
On November 16, 2007, the Attorney General filed a motion to stay
proceedings in this court pending the adjudication of petitioners’ U Visa
applications. We deny the request as moot but refer it to the BIA as the
appropriate body to grant the Attorney General’s request to have further
action delayed while the USCIS adjudicates the U Visa.