Friday, January 31, 2020
Debra Cassens Weiss for the ABA Journal reports on an immigration opinion of the U.S. Court of Appeals for the Seventh Circuit "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 (joined by William Joseph Bauer and David Hamilton).
As the court described the case, which involved the issuance of a U visa,
"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." (emphasis added).
The Seventh 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.
Judge Easterbrook's opinion in the case received a fair amount of attention from the media and immigration law professors. Above the Law even posted about it.