## Facts

- Hyoun Kyung Lee, a South Korean citizen, entered the United States in October 2003 on a nonimmigrant visa and overstayed beyond the six-month authorization.
- DHS initiated removal proceedings in July 2005; Lee conceded removability.
- Lee sought a continuance and protection from removal based on potential eligibility for U nonimmigrant status as a crime victim, relying on then-existing DHS “interim relief” (deferred-action-type relief) used before U-visa regulations were issued.
- Lee applied to USCIS for U-visa interim relief; USCIS denied the request for insufficient evidence of substantial physical or mental abuse and insufficient showing of ability to assist law enforcement.
- Lee later submitted a social-worker report describing psychological harm from alleged sex trafficking, but provided no evidence about her ability to assist law enforcement.
- In April 2006, the IJ concluded Lee failed to show eligibility for the interim-relief program and ordered removal; the BIA affirmed.

## Issues

1. Whether an IJ (and the BIA on appeal) has authority to grant or review U-visa interim relief administered by DHS/USCIS.
2. Whether the IJ abused discretion by denying a continuance or otherwise erring in proceeding to a removal order based on Lee’s asserted U-visa eligibility and related arguments about the “helpfulness to law enforcement” requirement.

## Decision

- The Ninth Circuit denied the petition for review.
- The court held that U-visa determinations, including interim relief, are committed to DHS/USCIS discretion, and immigration courts lack authority to grant that relief.
- The court found no reversible error in the IJ’s refusal to grant relief and the entry of a removal order where USCIS had already denied interim relief and Lee had not shown a likelihood of obtaining it.

## Legal Principles

- Authority to grant U nonimmigrant status lies with the Secretary of Homeland Security; immigration judges and the BIA do not adjudicate U-visa eligibility or interim relief.
- DHS decisions to grant or deny U-visa interim relief function as exercises of prosecutorial discretion and are not remedies available in removal proceedings before an IJ.
- Denials of U visas are reviewed within DHS through USCIS channels (including the Administrative Appeals Office), not through immigration court proceedings.
- An IJ may grant or deny a continuance pending collateral relief, but is not required to delay proceedings where the collateral application has been denied and the respondent has not shown a realistic prospect that the collateral relief will affect the outcome of removal proceedings.

## Conclusion

The Ninth Circuit upheld Lee’s removal order because U-visa interim relief was exclusively within DHS/USCIS discretion, beyond the authority of immigration judges and the BIA, and the IJ did not abuse discretion in proceeding after USCIS denied Lee’s interim-relief request.


Lee v. Holder, 599 F.3d 973 (9th Cir. 2010)