Immigration Law

7th Circuit is aghast at 'obduracy' of Board of Immigration Appeals, which refused to implement its decision

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The 7th U.S. Circuit Court of Appeals at Chicago didn’t mince words in a Jan. 23 opinion chastising the Board of Immigration Appeals for defying its remand order and concluding the appeals court had ruled incorrectly in the case.

“We have never before encountered defiance of a remand order, and we hope never to see it again,” the 7th Circuit said in a unanimous panel decision by Judge Frank Easterbrook.

The 7th Circuit said its remand was “met by obduracy,” and it would not give the board “a free pass for its effrontery” by remanding the case again.

Instead, the court vacated the board ruling and ruled for Jorge Baez-Sanchez, a Mexican citizen seeking a special “U visa” to remain in the United States. The decision allows Baez-Sanchez to apply for the visa.

Baez-Sanchez was subject to deportation because of a criminal conviction for aggravated battery of a police officer. Baez-Sanchez asked an immigration judge to grant him a waiver of inadmissibility to he could apply for the U visa, which allows some immigrants to remain in the United States if they are crime victims.

An immigration judge granted the waiver. On appeal, the Board of Immigration Appeals ruled that immigration judges don’t have the power to waive inadmissibility, and only the attorney general can make such determinations.

In a 2017 opinion, the 7th Circuit ruled the Board of Immigration Appeals had erred. Immigration judges can exercise the same powers as the attorney general absent a regulation to the contrary, the appeals court ruled then.

The 7th Circuit then remanded Baez-Sanchez’s case to the Board of Immigration Appeals with instructions for it to consider two issues. One was whether some statute, regulation or reorganization plan transferred the waiver power to the secretary of Homeland Security. The other was whether the waiver is available only to aliens applying outside the United States.

“What happened next beggars belief,” Easterbrook wrote. “The Board of Immigration Appeals wrote, on the basis of a footnote in a letter the attorney general issued after our opinion, that our decision is incorrect. Instead of addressing the issues we specified, the board repeated a theme of its prior decision that the secretary has the sole power to issue U visas and therefore should have the sole power to decide whether to waive inadmissibility. …

“The board seemed to think that we had issued an advisory opinion, and that faced with a conflict between our views and those of the attorney general it should follow the latter.”

The 7th Circuit said that members of the Board of Immigration Appeals “must count themselves lucky that Baez-Sanchez has not asked us to hold them in contempt, with all the consequences that possibility entails.”

How Appealing noted the decision; Law.com has coverage.

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