Juan Gabriel Torres-Tristan v. ERIC H. HOLDER, JR., Attorney General of the United States

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 10-1411, 10-2532 & 10-3333
JUAN GABRIEL TORRES-TRISTAN,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General
of the United States,
Respondent.
Petitions for Review of Orders of
the Department of Homeland Security.
No. A077-650-369
ARGUED JUNE 9, 2011—DECIDED SEPTEMBER 1, 2011
Before MANION, WOOD, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. We consider three petitions
for review by a Mexican citizen who has been ordered
removed from the United States. The first petition, No. 10-
1411, seeks direct review of an order by the Department
of Homeland Security (DHS) reinstating an earlier order
of removal. We have jurisdiction over that petition, but
the order was clearly proper. We deny that petition on
its merits. The second and third petitions seek to create

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2 Nos. 10-1411, 10-2532 & 10-3333
a novel route to obtain, apparently for the first time in
the circuit courts of appeals, judicial review of orders
by U.S. Citizenship and Immigration Services (USCIS)
that denied petitioner the “U Visa” he sought to prolong
his unlawful stay in the United States. U Visas, which
take their name from 8 U.S.C. § 1101(a)(15)(U), grant
temporary lawful resident status to alien victims of
crime who assist in an investigation or prosecution. We
conclude that we lack jurisdiction over those petitions
and dismiss them.
I. Factual and Procedural Background
Petitioner Juan Gabriel Torres-Tristan first entered
the United States in 1993 as a minor. He became involved
with the Latin Kings gang, and in 2000, he was serving
an Illinois sentence for robbery and aggravated bat-
tery. The U.S. Immigration and Naturalization Service
ordered him removed because he was in the United
States illegally. The order was executed on July 20, 2001
when petitioner was removed to Mexico. Because he
had been convicted of an aggravated felony, petitioner
was prohibited from re-entering the United States
without first seeking permission from the Attorney
General waiving his inadmissible status. See 8 U.S.C.
§ 1182(a)(9)(A)(ii)-(iii).
Despite this prohibition, petitioner re-entered the
United States without permission just three months
later and returned to the Chicago area. A little over a
year later, on December 7, 2002, and relevant to his U
Visa petition, Torres-Tristan was assaulted by a group of

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Nos. 10-1411, 10-2532 & 10-3333 3
people he did not know. According to his 2010 U Visa
petition, he was attacked while walking to a restaurant
for dinner with a friend. The attackers beat him with
bottles and bats and stole his vehicle. Petitioner was
knocked unconscious and suffered injuries to his face
and hands. In the days after the incident, he attended
a police line-up but could not identify any of the attackers.
For seven more years, petitioner continued to live in
the Chicago area with his fiancée and daughter, without
any official attention to his illegal status. In January 2010,
however, DHS officials arrested him and reinstated
his prior order of removal from 2000. About six weeks
later, while he remained in DHS custody, Torres-Tristan
filed a petition with USCIS seeking a U Visa, which
would grant him temporary lawful status based on the
2002 attack and his cooperation with the police at that
time. Because the 2000 removal order made petitioner
legally inadmissible to the United States and thus
ineligible for a U Visa, he also applied for a waiver of his
inadmissible status under 8 U.S.C. § 1182(d)(3) & (d)(14).
USCIS denied both his U Visa petition and his waiver
application, and then his later motion for reconsidera-
tion. Torres-Tristan has petitioned to review all of these
actions.
II. Reinstatement of the 2000 Removal Order
We turn first to the petition over which we have juris-
diction. Appeal No. 10-1411 seeks judicial review of the
DHS’s 2010 reinstatement of the removal order from
2000 pursuant to 8 U.S.C. § 1231(a)(5) and 8 C.F.R. § 241.8.

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4 Nos. 10-1411, 10-2532 & 10-3333
This section provides in pertinent part: “If the Attorney 1
General finds that an alien has reentered the United States
illegally after having been removed or having departed volun-
tarily, under an order of removal, the prior order of removal
is reinstated from its original date and is not subject to
being reopened or reviewed, the alien is not eligible and may
not apply for any relief under this chapter.”
Torres-Tristan pled guilty to criminal charges of illegal re- 2
entry in the Northern District of Illinois. The week before
our oral argument, he was sentenced to 37 months in prison.
An alien subject to removal under a reinstated order does
not have a right to a hearing before an immigration
judge. See 8 U.S.C. § 1231(a)(5). Rather, an immigration1
officer issues a “Notice of Intent/Decision to Reinstate
Prior Order,” which the alien may contest by making
a written or oral statement to the officer at the time of
issuance. 8 C.F.R. § 241.8(b) (“If the alien wishes to
make such a statement, the officer shall allow the alien
to do so and shall consider whether the alien’s state-
ment warrants reconsideration of the determination.”).
Under the statute, an alien who has not made a
statement or whose statement has been rejected “shall be
removed under the prior order at any time after the
reentry” of the order of removal. 8 U.S.C. § 1231(a)(5).
In this case, petitioner Torres-Tristan did not contest
the reinstatement order at the time it was issued. DHS
took him into custody. Torres-Tristan filed a timely2
petition for review of the reinstatement order pursuant
to 8 U.S.C. § 1252. See also 8 U.S.C. § 1228(b)(3) (requiring

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Nos. 10-1411, 10-2532 & 10-3333 5
a 14-day delay in executing removal order to allow op-
portunity to apply for judicial review).
Judicial review of a reinstatement order extends only
to whether the reinstatement order was properly entered.
See Gomez-Chavez v. Perryman, 308 F.3d 796, 801 (7th
Cir. 2002). We do not look behind the reinstatement to
entertain challenges to the earlier, underlying removal
order. Id. Petitioner Torres-Tristan concedes that he is
the proper subject of the reinstatement order. He does
not contest that he is removable for his criminal convic-
tions, and he makes no meaningful argument on appeal
to challenge the reinstatement. We deny the petition
for review of the reinstatement order.
III. Denial of a U Visa and Waiver of Inadmissibility
On March 9, 2010, six weeks after the reinstatement of
his prior removal order, and while he was in DHS
custody, Torres-Tristan submitted to USCIS a petition
for interim relief under 8 U.S.C. § 1101(a)(15)(U), the
U nonimmigrant status provision. Congress created the U
nonimmigrant classification or U Visa in 2000 for
victims of serious crimes and some of their family mem-
bers. See Pub. L. No. 106-386, 114 Stat. 1464 (2000); Fonseca-
Sanchez v. Gonzales, 484 F.3d 439, 442 n.4 (7th Cir. 2007).
Under the statute, a non-citizen is eligible for a U Visa if
the Secretary of Homeland Security determines that he
has suffered “substantial physical or mental abuse” as a
result of qualifying criminal activity and that he has
shown he “has been helpful, is being helpful, or is
likely to be helpful” to law enforcement authorities in-

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6 Nos. 10-1411, 10-2532 & 10-3333
Petitioner refers several times in his brief to being “entitled” 3
to a U Visa. A person who meets the statutory criteria is only
eligible for such a visa, not entitled to one as a matter of right.
The relevant statutes and regulations leave the final decision
to the discretion of DHS. See 8 U.S.C. § 1101(a)(15)(U) (the
Secretary of Homeland Security determines whether peti-
tioner has fulfilled statutory criteria); 8 C.F.R. § 214.14(c)(4)
(giving USCIS “sole discretion” to determine the “evidentiary
value” of the materials submitted by a petitioner); 8 C.F.R.
§ 214.14(c)(5)(i) (“If USCIS determines that the petitioner has
met the requirements for U-1 nonimmigrant status, USCIS
will approve Form I-918.”).
Although Torres-Tristan met the minimum statutory criteria, 4
it is difficult to see how granting his 2010 U Visa petition
could have served the purposes of the program. Even if he
could provide information that would actually be useful in
investigating and prosecuting the 2002 crime, the statute of
limitations had expired several years earlier.
vestigating or prosecuting the crime. 8 U.S.C.
§ 1101(a)(15)(U)(i).3
In his U Visa petition, Torres-Tristan described his
attack and the injuries that resulted in 2002, as well as his
assistance in the police investigation that followed.
During its preliminary review of Torres-Tristan’s peti-
tion, USCIS determined that he established prima facie
eligibility for a U Visa, meaning that he had properly
submitted the appropriate form and supporting
evidence and that the Chicago police department had
certified that he had provided the necessary assistance
for eligibility.4

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Nos. 10-1411, 10-2532 & 10-3333 7
There was a more basic problem, though. An alien is
eligible for a U Visa only if he is admissible to the United
States or if all grounds of inadmissibility have been
waived. See 8 C.F.R. § 214.1(a)(3)(i). When petitioner
Torres-Tristan sought a U Visa, he was inadmissible to
the United States on four independent grounds under
8 U.S.C. § 1182: he had been convicted of a crime in-
volving moral turpitude; he was an alien previously
removed and was not arriving in the country; he was
an alien present without being admitted; and, he was
a non-immigrant without a valid passport.
To overcome those obstacles, Torres-Tristan also filed
an application for a discretionary waiver of his inad-
missible status. After USCIS requested that petitioner
provide additional materials supporting his waiver
application, he submitted dozens of letters, medical
records, and police reports. These materials laid out a
case for waiver, claiming that he had reformed from
his criminal past, he was committed to his family, his
fiancée had serious health problems, and he had been
steadily employed since his last illegal re-entry.
In two letters dated June 3, 2010, USCIS denied both
Torres-Tristan’s U Visa petition and his waiver applica-
tion. In its letter denying the waiver application, USCIS
stated that federal regulations “allow[ ] the Service to
exercise discretion and waive the ground of inadmissi-
bility, if it is in the national interest.” His waiver applica-
tion was denied “as a matter of discretion” because
USCIS found that his claim was “not sufficiently per-
suasive.” The letter also noted that Torres-Tristan did

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8 Nos. 10-1411, 10-2532 & 10-3333
not make “any formal argument that the waiving of
[his] inadmissibility ground would be in the national or
public interest.” The second letter denied Torres-Tristan’s
petition for a U Visa because, without a waiver of inad-
missibility, Torres-Tristan was not eligible for a U Visa.
USCIS also denied Torres-Tristan’s later motion for
reconsideration.
On June 24, 2010, Torres-Tristan filed a second petition
in this court (No. 10-2532) for review of USCIS’s denials
of his U Visa petition and waiver application, and on
October 6, he filed a third petition (No. 10-3333) for
review of USCIS’s denial of his motion for reconsidera-
tion. All three petitions for review were consolidated
for briefing and argument.
We must first address the threshold legal question
whether we may exercise jurisdiction to review the
denials of the waiver of inadmissibility and the U Visa.
Torres-Tristan contends that we may exercise jurisdic-
tion to review both denials under 8 U.S.C. § 1252(a),
which authorizes judicial review of “a final order of
removal.” We begin with the petitioner’s waiver applica-
tion because his eligibility for a U Visa depends on
whether he can obtain a discretionary waiver of his
inadmissible status. See 8 C.F.R. §§ 214.1(a)(3)(i),
214.14(c)(2)(iv) (inadmissible U Visa petitioners must
submit an application for a waiver of inadmissibility as
part of their “initial evidence”). We conclude that we
lack jurisdiction over the denial of a waiver of inadmissi-
bility because that denial was collateral to the DHS
order reinstating the earlier removal order.

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Nos. 10-1411, 10-2532 & 10-3333 9
In 2007, DHS issued 8 C.F.R. § 212.17, addressing inad-
missible U Visa petitioners like Torres-Tristan. Section
212.17 describes how to file an application for a waiver
of inadmissible status (an “I-192” waiver), how DHS
treats such applications, and how DHS may revoke
“a waiver previously authorized.” In cases like this one,
where the petitioner has a record of violent or dangerous
crimes, the regulation states that “USCIS will only exer-
cise favorable discretion in extraordinary circum-
stances.” 8 C.F.R. § 212.7(b)(2). Paragraph (b)(3) of the
regulation is clear: “There is no appeal of a decision
to deny a waiver.” 8 C.F.R. § 212.17(b)(3). The intro-
ductory notes of the regulation further state: “As with
inadmissibility waiver applications for other nonim-
migrant classifications, there is no appeal of a decision
to deny Form I-192.” New Classification for Victims
of Criminal Activity; Eligibility for “U” Nonimmigrant
Status, 72 Fed. Reg. 53,014 (Sept. 17, 2007), at 53,022.
To avoid this clear roadblock, Torres-Tristan seeks to
obtain judicial review of the waiver denial under the
jurisdictional umbrella of his meritless challenge to the
2010 reinstatement of the 2000 removal order. This
would be an unprecedented expansion of our very
limited judicial review of the reinstatement. We lay out
petitioner’s argument and explain our rejection of it.
Under 8 U.S.C. § 1252, this court’s jurisdiction over
immigration removal orders is limited to review of “a final
order of removal.” 8 U.S.C. § 1252(a)(1), (a)(5). The term,
“final order of removal,” includes “not only the actual
order of deportation, but all orders closely related to the

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10 Nos. 10-1411, 10-2532 & 10-3333
deportation proceeding . . . and entered during the pro-
ceeding, such as an order denying voluntary departure
or an adjustment of status.” Carvajal-Munoz v. INS, 743
F.2d 562, 566 (7th Cir. 1984), citing Foti v. INS, 375 U.S.
217, 220-23 (1963). Ancillary determinations made
outside the context of a removal proceeding, however, are
not subject to direct review. Fonseca-Sanchez, 484 F.3d
at 444. Only matters “intimately associated and immedi-
ately associated” with the final order or “governed by
the regulations applicable to the deportation proceeding
itself, and . . . ordinarily presented to the special
inquiry officer [immigration judge] who entered the
deportation order fall within the ambit of direct
appellate review.” Carvajal-Munoz, 743 F.2d at 566, quoting
Cheng Fan Kwok v. INS, 392 U.S. 206, 217 (1968) (quotation
marks omitted), superseded in part by amendments to
8 U.S.C. § 1252(b)(9).
These holdings would seem to resolve the matter here
with respect to the denial of Torres-Tristan’s waiver
application. USCIS’s denial of petitioner’s waiver ap-
plication was a decision separate and apart from the
final order of removal. As an ancillary determination,
the waiver denial does not fall within the purview of
orders over which we may exercise jurisdiction pursu-
ant to 8 U.S.C. § 1252.
Because petitioner requires a waiver of his inadmissible
status in order to apply for U Visa, we could conclude
our inquiry here. But Torres-Tristan urges us to review
his U Visa petition and waiver application denials to-
gether. We remain unpersuaded. In Fonseca-Sanchez,

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Nos. 10-1411, 10-2532 & 10-3333 11
we held that we lacked jurisdiction to review a denial of
a U Visa petition as part of a review of a final admini-
strative removal order under the same principles noted
above. 484 F.3d at 444-45. Like Torres-Tristan, Fonseca-
Sanchez was subject to expedited removal after being
convicted of an aggravated felony. On the basis of our
holding in that case, Torres-Tristan would appear to
be precluded from seeking review of the denial of his U
Visa petition, as well.
To avoid the precedential effect of Fonseca-Sanchez,
Torres-Tristan relies on new language in the U Visa
regulations issued in November 2009 and on the
Supreme Court’s decision in INS v. Chadha, 462 U.S. 919
(1983). The regulation, 8 C.F.R. § 214.14(c)(5)(i), states in
part that when a U Visa is granted to a person who is
subject to a removal order issued by the Secretary of
Homeland Security, “the order will be deemed canceled
by operation of law.” In Chadha, the Supreme Court
held that section 1252 provides direct review for “all
matters on which the validity of the final [removal]
order is contingent.” 462 U.S. at 938. As Torres-Tristan
views things, the new regulation makes the ongoing
validity of his removal order contingent on the outcome
of his U Visa petition. Under the rule stated in Chadha,
he contends, the new regulation gives this court the
power to review both USCIS denials under section 1252.
We disagree. The “canceled by operation of law” provi-
sion in the U Visa regulation is an unlikely means for
accomplishing an improbable and unprecedented result.
We reach this conclusion for three principal reasons.

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12 Nos. 10-1411, 10-2532 & 10-3333
First, the proposed result would create a path to judicial
review for a narrow class of U Visa denials: only denials
involving aliens who are subject to an order of exclu-
sion, deportation, or removal issued by the Secretary of
Homeland Security, but not those who have been
ordered removed by an immigration judge. See 8 C.F.R.
§ 214.14(c)(5)(i). Providing judicial review for that
narrow group of beneficiaries seems like an improbable
result at best. We have not been shown any persuasive
reason to think that the one group, subject to expedited
removal proceedings under orders by the Secretary of
Homeland Security, should be given this special treat-
ment for a highly discretionary decision that would not
otherwise be subject to review by the circuit courts of
appeals.
Second, judicial review in the circuit courts of appeals
of U Visa denials (even apart from the denial of waiver
of inadmissibility) would appear to be unprecedented.
Our decisions reflect a longstanding practice of not re-
viewing visa denials in general and not reviewing
them as part of removal orders. See, e.g., Conti v. INS,
780 F.2d 698, 702 (7th Cir. 1985) (finding that collateral
matters, such as those regarding disposition of a visa
application, were not subject to the court’s jurisdiction);
De Figueroa v. INS, 501 F.2d 191,194 (7th Cir. 1974) (“We
say collateral because the matter relating to the
approval and withdrawal of visa petitions is not within
the scope of a deportation proceeding.”); Carino v. INS,
460 F.2d 1341, 1344 (7th Cir. 1972) (concluding that
statute granting jurisdiction to the court over removal
orders did not confer jurisdiction over visa matter); Abu-

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Nos. 10-1411, 10-2532 & 10-3333 13
Sammour v. Mukasey, 312 F. App’x 813, 815 (7th Cir. 2008)
(declining jurisdiction over the denial of an immediate
relative visa petition); Al-Marbu v. Keisler, 248 F. App’x
748, 751-52 (7th Cir. 2007) (declining jurisdiction over
denial of an S Visa petition).
Turning more specifically to U Visas, we have already
referred to our decision in Fonseca-Sanchez, rejecting
section 1252 review of a U Visa denial. The Ninth, D.C.,
and Eleventh Circuits have also held that judicial review
is not available for denial of a U Visa. See Chang Young
Jung v. Holder, 393 F. App’x 530 (9th Cir. 2010); Eun
Kyeong Seo v. Holder, 358 F. App’x 884 (9th Cir. 2009);
Semiani v. United States, 575 F.3d 715 (D.C. Cir. 2009)
(“Congress has not provided for judicial review of deci-
sions to deny a ‘U Visa’ ”); Bejarano v. DHS, 300 F. App’x
651, 653 (11th Cir. 2008) (same). We have not found any
contrary authority.
Third, the “canceled by operation” sentence in the
regulation is a very unlikely means for accomplishing
the proposed result. If judicial review for this unusual
and narrow set of denied applicants for U Visas were
intended, we would expect the indication of that intent
to be much more explicit. In context, the sentence
seems much more like a matter of administrative con-
venience to keep one office of the DHS from undoing
what another has done when a U Visa is actually
granted. The sentence in 8 C.F.R. § 214.14 is part of a
larger subsection (c) that establishes the procedure for
applying for a U Visa. Subsection (c)(1)(ii) includes in-
structions for applicants like Torres-Tristan who are

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14 Nos. 10-1411, 10-2532 & 10-3333
The entire paragraph (c)(5)(i) reads: 5
Approval of Form I-918, generally. If USCIS determines that
the petitioner has met the requirements for U-1
nonimmigrant status, USCIS will approve Form I-918.
For a petitioner who is within the United States, USCIS
also will concurrently grant U-1 nonimmigrant status,
subject to the annual limitation as provided in paragraph
(d) of this section. For a petitioner who is subject to an
order of exclusion, deportation, or removal issued by the
Secretary, the order will be deemed canceled by operation
of law as of the date of USCIS’ approval of Form I-918.
A petitioner who is subject to an order of exclusion, depor-
tation, or removal issued by an immigration judge or
the Board may seek cancellation of such order by filing,
with the immigration judge or the Board, a motion to
reopen and terminate removal proceedings. ICE counsel
may agree, as a matter of discretion, to join such a motion
to overcome any applicable time and numerical limita-
tions of 8 CFR 1003.2 and 1003.23.
subject to final removal orders. It points out (a) that such
aliens may apply for U Visas, but (b) that an application
has no effect on Immigration and Customs Enforce-
ment’s authority to execute a final order, while (c) a stay
of execution may be available. The “canceled by opera-
tion of law” sentence is part of (c)(5)(i), which addresses
the bureaucratic details, and not of a denial but of a
grant of a U Visa. The first sentence explains that5
USCIS will grant the visa by approving Form I-918. The
second sentence applies to successful petitioners who
are in the United States, who will receive an order
granting the visa. The third sentence, the one Torres-

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Nos. 10-1411, 10-2532 & 10-3333 15
Tristan relies on, explains what to do with successful
petitioners subject to a DHS removal order: “For a peti-
tioner who is subject to an order of exclusion, deportation,
or removal issued by the Secretary, the order will be
deemed canceled by operation of law as of the date of
USCIS’ approval of Form I-918.” The fourth sentence
addresses other successful petitioners subject to removal
orders issued by an immigration judge or the Board of
Immigration Appeals: they may seek cancellation of the
order before the judge or the Board. And the fifth sentence
notes that ICE counsel may decide, as a matter of dis-
cretion, to join in such a request. In other words,
the sentence Torres-Tristan relies on is addressed to
successful petitioners, not unsuccessful ones, and
provides an unlikely vehicle for producing the odd
result he seeks.
More relevant here would be subsection (c)(5)(ii),
which addresses denials of U Visa petitions. That
provision allows for appeal to the Administrative
Appeals Office, but Torres-Tristan did not take that
route. The regulation then provides for petitioners who
were subject to final removal orders, but who (unlike
Torres-Tristan) obtained a stay of the order pending
a decision on the U Visa: “For petitioners who are
subject to an order of removal, deportation, or exclusion
and whose order has been stayed, USCIS’ denial of
the petition will result in the stay being lifted auto-
matically as of the date the denial becomes administra-
tively final.” 8 C.F.R. § 214.14(c)(5)(ii). That automatic
effect appears to be simply another bureaucratic mecha-
nism to keep different offices of DHS headed in the

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16 Nos. 10-1411, 10-2532 & 10-3333
same direction. Nothing in the provisions for denial of
U Visa petitions suggests that such a petitioner can
avoid the Administrative Appeals Office and go straight
to a circuit court to hear an independent petition for
review of a removal order.
We are not persuaded by petitioner’s reliance on INS
v. Chadha to achieve the improbable result he proposes.
The principal constitutional issue in Chadha was the one-
house legislative veto, which had been exercised to
order the INS to issue an order to remove Mr. Chadha,
even though INS had permitted him to remain in the
United States. The jurisdiction to hear his challenge
was clear: he was challenging a final order of removal.
The only novelty was that the existence of the order
depended on the constitutionality of the one-house veto.
There was nothing at all collateral about his challenge
to the one-house veto — it was the action that triggered
the order. Allowing judicial review in that circumstance
provides no guidance for denial of an unrelated visa
petition and waiver application through a procedure
entirely separate from and independent of the reinstate-
ment of his removal order and not otherwise subject to
review. Nothing in the Supreme Court’s Chadha opinion
suggests that its language was intended to broaden the
scope of judicial review to consider such collateral visa
matters as part of the review of a removal order. See
462 U.S. at 937-38.
Torres-Tristan’s reliance on the Ninth Circuit’s
decision in Morales-Izquierdo v. DHS, 600 F.3d 1076 (9th
Cir. 2010), is also not persuasive. There, the alien, also

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Nos. 10-1411, 10-2532 & 10-3333 17
a citizen of Mexico, had been previously removed from
the United States and re-entered illegally, so that he
was inadmissible. He applied to adjust his status to
become a lawful permanent resident, which would
have required a discretionary waiver of inadmissibility.
While his application was pending, the INS reinstated
the earlier order of removal, which rendered him (like
Torres-Tristan here) ineligible for “any relief” that might
have been available. See 8 U.S.C. § 1231(a)(5). Morales-
Izquierdo’s application to become a lawful permanent
resident was denied. He sought judicial review by filing
a petition for a writ of habeas corpus in a district court.
The district court denied the petition, and the Ninth
Circuit affirmed, relying on the “zipper clause” in 8
U.S.C. § 1252(b)(9), which removed habeas corpus juris-
diction from the district court:
Judicial review of all questions of law and fact, in-
cluding interpretation and application of constitu-
tional and statutory provisions, arising from any
action taken or proceeding brought to remove an
alien from the United States under this subchapter
shall be available only in judicial review of a final
order under this section. Except as otherwise pro-
vided in this section, no court shall have jurisdic-
tion, by habeas corpus under section 2241 of Title 28
or any other habeas corpus provision, by section
1361 or 1651 of such title, or by any other provision
of law (statutory or nonstatutory), to review such
an order or such questions of law or fact.
The Ninth Circuit relied on Chadha to conclude that the
link between Morales-Izquierdo’s reinstated removal

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18 Nos. 10-1411, 10-2532 & 10-3333
The Second Circuit followed the Ninth Circuit’s approach 6
in Delgado v. Quarantillo, 643 F.3d 52 (2d Cir. 2011), concluding
that a petition for review of a denial of a waiver of inadmissi-
bility in anticipation of an adjustment of status was an
indirect challenge to petitioner’s reinstated order of removal.
Delgado’s petition, like that of Morales-Izquierdo, concerned
an adjustment-of-status application along with an I-212
waiver of inadmissibility that USCIS denied. She brought her
claim to the Southern District of New York which found that
it lacked jurisdiction. The court of appeals agreed without
identifying precisely what avenues of relief were available to
the petitioner. In light of the differences in posture and sub-
stance, we see little practical application of the Second Circuit’s
conclusions to this case.
order and his application for adjustment of status was
so close that the application was covered by the zip-
per clause: his challenge to the adjudication of
his adjustment-of-status application was appropriately
characterized as a challenge to an “order of re-
moval.” The court noted that “if Morales were granted
the relief he seeks in the present habeas corpus petition —
a nunc pro tunc Form I-212 waiver of inadmissibility
and the adjustment of status to that of [a legal perman-
ent resident] — the Reinstatement Order would be ren-
dered invalid.” 600 F.3d at 1082-83.6
Although Torres-Tristan likens Morales-Izquierdo’s
application to become a lawful permanent resident to
his own U Visa petition, we find them distinguishable. The
process for obtaining relief pursuant to an adjustment-of-
status application differs from the U Visa process, and

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Nos. 10-1411, 10-2532 & 10-3333 19
Morales-Izquierdo had applied for relief two years prior to the 7
reinstatement of his removal order. Once the reinstatement
order had issued, he was no longer eligible for any relief, see 8
U.S.C. § 1231(a)(5), though he reapplied the following year
and also filed an application to waive his inadmissibility for
the first time.
Although, as a removed alien who re-entered illegally, Torres- 8
Tristan was also subject to 8 U.S.C. § 1231(a)(5) barring him
from “any relief,” the government acknowledges that it
(continued...)
the statutes and regulations treat the relevant waivers
for each type of relief differently. The Ninth Circuit
based its conclusion in Morales-Izquierdo in large part on
an “inextricable link” between the adjustment-of-
status challenge and the removal order resulting from
the statutory framework governing adjustment of status
at the time, whereby Morales-Izquierdo was not eligible
for any relief as long as the order stood. See 600 F.3d
at 1082. On the basis of that link, the court aggregated7
the denials of Morales-Izquierdo’s waiver and adjust-
ment applications in the review of his reinstated
removal order.
There is no such link here. U Visa petitioners file a
different type of application for a waiver (a Form I-192)
subject to its own process of consideration and, most
important, they may do so without regard for an out-
standing removal order. See 8 C.F.R. § 214.14(c)(1)(ii).
Unlike the petitioner in Morales-Izquierdo, Torres-Tristan
could be eligible for U Visa relief notwithstanding
the removal order. These differences in the applicable8

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20 Nos. 10-1411, 10-2532 & 10-3333
(...continued) 8
did not reject petitioner’s U Visa application based on this
statutory bar.
Also, as noted above, like other circuits, the Ninth Circuit has 9
consistently found that it lacks jurisdiction over U Visa deni-
als. See, e.g., Chang Young Jung v. Holder, 393 F. App’x 530
(9th Cir. 2010); Eun Kyeong Seo v. Holder, 358 F. App’x 884 (9th
Cir. 2009).
statutes and regulations governing the case before us
as compared to those presented to the Ninth Circuit
lead us to decline to adopt and then extend the Morales-
Izquierdo reasoning here.9
Moreover, the Ninth Circuit did not take up the
specific issue before us in this case: whether the
denials of a Form I-192 waiver and discretionary visa
are part of a reviewable order of removal. The question
before the court in Morales-Izquierdo was whether peti-
tioner could bring a habeas action in the district court
challenging the denial of his Form I-485 adjustment-of-
status application — not whether there was appellate
review under section 1252. The court offered no relief
to the petitioner in that case, saying that his habeas
corpus approach would turn on its head the expedited,
summary reinstatement of removal orders. We have
likewise recognized the “zipper clause” to be a “jurisdic-
tional limitation,” and not a “grant” of jurisdiction, de-
signed to “consolidate certain questions in one petition
for review.” See Levya v. Ashcroft, 380 F.3d 303, 306-07
(7th Cir. 2004) (finding that the zipper clause did not

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Nos. 10-1411, 10-2532 & 10-3333 21
Nothing in our opinion forecloses the possibility that a 10
petitioner who exhausted administrative remedies might be
able to seek review in a federal district court through another
means, such as under the Administrative Procedure Act, Pub.
L. No. 79-404, 60 Stat. 237 (1946), as we acknowledged in
Fonseca-Sanchez. 484 F.3d at 445. Under the governing 2009
U Visa regulations, however, the pendency of those pro-
ceedings would not affect the execution of a standing
removal order. See 8 C.F.R. § 214.14(c)(1)(ii).
provide an independent basis for jurisdiction that would
overcome the jurisdictional bar in section 1252).
The same reasoning applies here. The rule Torres-
Tristan advocates here would, if adopted, create a new
opportunity for an inadmissible alien subject to
expedited removal to slow down the entire process by
applying for a U Visa and a waiver of inadmissibility,
and then to seek and obtain judicial review of those
denials, no matter how weak the applications and chal-
lenges might be. See generally Kashani v. Nelson,
793 F.2d 818, 824-25 (7th Cir. 1986) (acknowledging con-
gressional intent to expedite and consolidate review).
We do not have jurisdiction to review the denial of Torres-
Tristan’s application for a waiver of inadmissibility or
his petition for a U Visa.10
IV. The Denial of Reconsideration
Last, we need not address the parties’ arguments regard-
ing USCIS’s dismissal of Torres-Tristan’s motion to re-
open/reconsider its prior decision on his Form I-192.

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22 Nos. 10-1411, 10-2532 & 10-3333
Lacking jurisdiction to consider the underlying issue,
we similarly lack jurisdiction to evaluate the merits of
Torres-Tristan’s motion for reconsideration. See Zamora-
Mallari v. Mukasey, 514 F.3d 679, 694 (7th Cir. 2008) (where
Congress specifically withdraws this court’s jurisdic-
tion to review a final order, the court’s authority to
review motions to reconsider is also withdrawn). We
dismiss the third petition for review, No. 10-3333, for
lack of jurisdiction.
Accordingly, the petition for review in No. 10-1411 is
DENIED, and the petitions for review in No. 10-2532 and No.
10-3333 are DISMISSED for lack of jurisdiction, without
reaching the merits.
9-1-11

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