UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-2467

VICTOR ANTONIO JIMENEZ-RODRIGUEZ,

Petitioner,

v. MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals.

Argued: January 27, 2021 Decided: April 29, 2021

Before GREGORY, Chief Judge, WYNN, and HARRIS, Circuit Judges.

Petition for review granted, vacated and remanded by published opinion. Chief Judge Gregory wrote the opinion, in which Judge Wynn and Judge Harris joined.

ARGUED: Bradley Bruce Banias, WASDEN BANIAS LLC, Mount Pleasant, South Carolina, for Petitioner. Robert Dale Tennyson, Jr., UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Joseph H. Hunt, Assistant Attorney General, Carl McIntyre, Assistant Director, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. GREGORY, Chief Judge:

After being placed in removal proceedings, Victor Jimenez-Rodriguez sought a U visa, which would have allowed him to remain in the United States lawfully as a temporary resident. But Jimenez-Rodriguez could not acquire the visa without a waiver of inadmissibility. He requested that waiver from U.S. Citizenship and Immigration Services (“USCIS”), and USCIS denied the request. After the immigration judge (“IJ”) ordered removal, Jimenez-Rodriguez argued before the Board of Immigration Appeals (“BIA”) that the IJ erred by denying him a continuance and that Jimenez-Rodriguez should be allowed to renew his request for an inadmissibility waiver before the IJ. The BIA rejected those claims and affirmed the order of removal. We grant the petition and remand for further proceedings, as we conclude that the Department of Justice’s regulations empower the IJ to consider Jimenez-Rodriguez’s application for an inadmissibility waiver under 8 U.S.C. § 1182(d)(3)(A)(ii).

I.

Victor Jimenez-Rodriguez is a Mexican national and citizen. When he was ten years old, his parents brought him into the United States without lawful status on January 15, 2001. He has lived in this country ever since. Because he is undocumented, he lacked the paperwork that would enable him to seek employment. So to apply for a job and provide for his family, he purchased a fake ID from a friend. But he was caught—and charged with identity theft. Jimenez-Rodriguez pleaded guilty and was sentenced to ten to twelve

2 months in prison. After he served his sentence, U.S. Immigrations and Customs Enforcement detained him and placed him in removal proceedings.

During his initial proceedings, Jimenez-Rodriguez was released on bond. One day, Jimenez-Rodriguez was riding in the passenger seat of his friend’s vehicle when a semi- truck crashed into their car on the interstate. The collision injured Jimenez-Rodriguez and killed his friend. As the only eyewitness to this tragic incident, Jimenez-Rodriguez cooperated fully with law enforcement and assisted them in prosecuting the truck driver for vehicular homicide.

Due to these events, Jimenez-Rodriguez informed the IJ that he intended to obtain temporary lawful residency through a U visa as the victim of a serious crime cooperating with law enforcement in prosecuting the offender. See 8 U.S.C. § 1101(a)(15)(U). Because Jimenez-Rodriguez is considered “inadmissible” under the INA—which renders him ineligible for a U visa, 8 U.S.C. § 1182(a)—he submitted to USCIS an application for a waiver of inadmissibility alongside his petition for the visa. Given the pending U visa petition, the IJ continued Jimenez-Rodriguez’s removal proceedings several times to give him the chance obtain the visa. In an April 201