Hyoun Kyung Lee v. Holder

                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

HYOUN KYUNG LEE,                          
                            Petitioner,
                                                 No. 07-71193
                  v.
                                                 Agency No.
ERIC H. HOLDER    Jr., Attorney                  A098-266-266
General,
                          Respondent.
                                          

HYOUN KYUNG LEE,                          
                            Petitioner,          No. 07-71916
                  v.
                                                 Agency No.
                                                 A098-266-266
ERIC H. HOLDER    Jr., Attorney
General,                                           OPINION
                          Respondent.
                                          
          On Petition for Review of an Order of the
               Board of Immigration Appeals

                 Submitted February 9, 2010*
                   San Francisco, California

                      Filed March 25, 2010

  Before: Alex Kozinski, Chief Judge, David R. Thompson
        and M. Margaret McKeown, Circuit Judges.

                       Per Curiam Opinion

  *The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

                               4853
4854                   LEE v. HOLDER


                        COUNSEL

Alex C. Park, Law Offices of Alex C. Park, Santa Clara, Cali-
fornia, for the petitioner.
                         LEE v. HOLDER                      4855
Shahrzad Baghai, Office of Immigration Litigation, Civil
Division, U.S. Department of Justice, Washington, D.C., for
the respondent.


                          OPINION

PER CURIAM:

   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 author-
ity to grant Lee U visa interim relief, we deny the petition for
review.

                         BACKGROUND

   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 com-
menced removal proceedings against her in July 2005. In pro-
ceedings 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”
4856                        LEE v. HOLDER
to law enforcement authorities that are investigating or prose-
cuting the crime. 8 U.S.C. § 1101(a)(15)(U)(i).

   At the time Lee filed her application, DHS had not yet pro-
mulgated regulations implementing the U visa statute.1
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 traf-
ficking ring that had victimized her. On February 2, 2006,
USCIS denied Lee’s application for lack of sufficient evi-
dence 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 prose-
cuting the crime. Lee also failed to submit the required certifi-
cation from law enforcement authorities of her assistance.
USCIS indicated that Lee could submit further documentation
to overcome the deficiencies in her application.
  1
   DHS issued regulations in September 2007. See New Classification for
Victims of Criminal Activity; Eligibility for “U” Nonimmigrant Status, 72
Fed. Reg. 53,014 (Sept. 17, 2007) (to be codified at 8 CFR pts. 103, 212,
214, 248, 274a and 299).
                         LEE v. HOLDER                      4857
   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 psycholog-
ical harm she suffered at the hands of her sex traffickers. Lee
did not submit any further evidence to USCIS.

   The IJ held a merits hearing in Lee’s case in April 2006.
At the conclusion of the hearing, the IJ ordered Lee removed
on the grounds that Lee failed to show prima facie eligibility
for U visa interim relief. Although she submitted further evi-
dence of psychological harm, she made no showing of her
helpfulness to law enforcement officials. The IJ noted that
“there is nothing from the United States Attorney’s office
where this matter is presently pending to indicate that [Lee’s]
testimony or information is requested or required by that
agency.” The BIA affirmed without opinion.

                           ANALYSIS

   Lee argues that the IJ erred in finding her ineligible for U
visa interim relief. The appeal faces a more fundamental
problem—the IJ did not have the authority to grant Lee
interim relief in the first place. Rather, this decision was com-
mitted to USCIS.

   [1] The interim relief program was a DHS effort to provide
temporary relief in the form of parole, deferred action, and
stays of removal to individuals who showed prima facie eligi-
bility for U visas pending issuance of the regulations. Cronin
Memo at 2. At the time Lee applied for interim relief, appli-
cants were required to submit prima facie evidence that they
met each statutory requirement for eligibility, and all applica-
tions, including those filed by individuals, like Lee, who were
in removal proceedings, were processed by the USCIS Ver-
mont Service Center (“VSC”). Memorandum from William
R. Yates, Assoc. Dir. of Operations to Director, VSC, USCIS
(“Yates Memo 2003”), at 2-3 (Oct. 8, 2003); Memorandum
from William R. Yates, Assoc. Dir., Operations to Paul E.
4858                         LEE v. HOLDER
Novak, Dir., Vermont Serv. Ctr., USCIS, at 1-2 (May 6,
2004).

   [2] The interim program afforded IJs no authority to decide
applications for interim relief. Denials or termination of
deferred action were not appealable. See Yates Memo 2003 at
6. Similarly, the U visa regulations that were ultimately issued
provide USCIS with “sole jurisdiction over all petitions for U
nonimmigrant status.” 8 C.F.R. § 214.14(c)(1); see also Mat-
ter of H-A-, 22 I&N Dec. 728, 736 (BIA 1999) (noting the
IJ’s lack of jurisdiction to assess the evidence submitted in
support of a visa petition); Dielmann v. INS, 34 F.3d 851, 853
(9th Cir. 1994) (upholding the Attorney General’s decision to
assign adjudication of immediate relative petitions to INS dis-
trict directors, and not to IJs or the BIA). Even under the new
regulations, petitioners who are denied U visas may appeal
only to the Administrative Appeals Office of USCIS rather
than the immigration court. 8 C.F.R. § 214.14(c)(5)(ii).
Because USCIS, and not the IJ, had jurisdiction over Lee’s
request for interim relief, Lee’s appeal fails.2

   Lee also complains that the U visa regulations “fail[ ] to set
a guideline as to the application of the ‘likely to be helpful’
[criterion].” The point of this argument is unclear as the valid-
ity of the regulations is not at issue in this case. In any event,
Lee did not exhaust this argument in her appeal to the BIA,
and thus we lack jurisdiction to review it. 8 U.S.C.
§ 1252(d)(1).

   The petition for review is DENIED.




  2
    Even if the IJ had authority to rule on the denial of interim relief, as
the IJ held, Lee failed to provide sufficient documentation of her eligibil-
ity, including the required certification from a law enforcement official as
to her helpfulness in the investigation or prosecution of a crime.