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Appellate Court Calls Out DOJ For ‘Flatly Refusing’ to Implement Decision in Immigration Case

A federal appellate court issued a scathing decision, expressing utter disbelief after the Department of Justice (DOJ) “flatly refused” to implement its decision in a controversial immigration case.

The U.S. Court of Appeals for the Seventh Circuit ordered the DOJ’s Board of Immigration Appeals (BIA) to review its previous ruling. That ruling held that immigration judges are not authorized to issue waivers of inadmissibility to immigrants with a criminal history seeking admission to the U.S., reasoning that Attorney General William Barr alone held such power.

The case centered on Jorge Baez-Sanchez, a Mexican citizen rendered inadmissible for entry to the U.S. because of a conviction for aggravated battery of a police officer. Baez-Sanchez applied and received a waiver of inadmissibility from an immigration judge, allowing him to apply for a U visa, a special visa available to “inadmissible aliens” who have been victims of crime in the United States.

Instead of abiding by the Seventh Circuit’s ruling to review its earlier decision, however, the BIA not only ignored the federal appeals court’s ruling, it also issued another decision–based on its previous reasoning–which said the Seventh Circuit was wrong.

“What happened next beggars belief,” the three-judge panel for the Seventh Circuit wrote in a six-page decision admonishing the DOJ.

“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,” Judge Frank Easterbrook wrote, adding, “In sum, the Board flatly refused to implement our decision. Baez-Sanchez has filed a second petition for review.”

The Seventh Circuit panel wrote that it had “never before encountered defiance of a remand order,” and said the BIA is “lucky” Baez-Sanchez didn’t seek to hold them in contempt of court.

“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 later. Yet it should not be necessary to remind the Board, all of whose members are lawyers, that the ‘judicial Power’ under Article III of the Constitution is one to make conclusive decisions, not subject to disapproval or revision by another branch of government,” Easterbrook wrote. “The Attorney General, the Secretary, and the Board are free to maintain, in some other case, that our decision is mistaken—though it has been followed elsewhere. But they are not free to disregard our mandate in the very case making the decision. That much, at least, is well established, not only in Plaut but also in many other cases. The Solicitor General did not ask the Supreme Court to review our decision, and the Department of Justice is bound by it.”

The Seventh Circuit rejected the DOJ’s request to remand the case back to the BIA again, refusing to allow the Board another opportunity to defy the appellate court. Instead, the panel upheld the immigration judge’s initial order, granted Baez-Sanchez a U visa and deemed “all of the legal questions settled.”

Seventh Circuit Decision by Law&Crime on Scribd

[image via PBS screenshot]

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Jerry Lambe is a journalist at Law&Crime. He is a graduate of Georgetown University and New York Law School and previously worked in financial securities compliance and Civil Rights employment law.