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Immigration Law

CA7 Scorches BIA: Baez-Sanchez II

Baez-Sanchez v. Barr

"On [a previous] petition for review, we held that 8 C.F.R. §1003.10(a) permits immigration judges to exercise all of the Attorney General’s powers, except those expressly reserved by some other regulation. Baez-Sanchez v. Sessions, 872 F.3d 854 (7th Cir. 2017). ... We remanded with instructions... What happened next beggars belief. 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 did not rely on any statute, regulation, or reorganization plan transferring the waiver power under §1182(d)(3)(A)(ii) from the Attorney General to the Secretary. Nor did the Board discuss whether only aliens outside the United States may apply for relief under §1182(d)(3)(A)(ii). Likewise the Board did not consider whether Baez-Sanchez is entitled to a favorable exercise of whatever discretion the Attorney General retains. In sum, the Board flatly refused to implement our decision. Baez- Sanchez has filed a second petition for review. We have never before encountered defiance of a remand order, and we hope never to see it again. ... W]e have already remanded, only to be met by obduracy. The remand rule is designed to afford the agency an opportunity to have its say on an issue, a say that may reflect expertise and could be entitled to judicial deference. The Board had that opportunity and disdained it. Another remand would do little beside give the Board a free pass for its effrontery, while delaying the alien’s entitlement to a final decision. That’s not the goal of the remand rule. Baez-Sanchez has waited long enough. ... All of the issues in this proceeding therefore have been finally resolved, and there is nothing more for the Board to do. The petition for review is granted, and the Board’s decision is vacated. This leaves the immigration judge’s decision in force. The Executive Branch must honor that decision, which grants Baez-Sanchez a waiver of inadmissibility so that he may seek a U visa from the Department of Homeland Security."

[Hats way off to Zach Avallone, Erin Murphy and Chuck Roth!]