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Immigration Law – Alien’s Inadmissibility

By: Derek Hawkins//October 10, 2017//

Immigration Law – Alien’s Inadmissibility

By: Derek Hawkins//October 10, 2017//

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7th Circuit Court of Appeals

Case Name: Jorge Baez-Sanchez v. Jefferson B. Sessions, III, Attorney General of the United States

Case No.: 16-3784

Officials: BAUER, EASTERBROOK, and HAMILTON, Circuit Judges.

Focus: Immigration Law – Alien’s Inadmissibility

This proceeding begins where L.D.G. v. Holder, 744 F.3d 1022 (7th Cir. 2014), ends. We held in LDG that the Attorney General has authority un‐ der 8 U.S.C. §1182(d)(3)(A)(ii) to waive an alien’s inadmissibility—and thus to halt removal temporarily—while the alien requests a U visa from the Department of Homeland Security. After Jorge Baez‐Sanchez requested that relief from an immigration judge, however, the Board of Immigration Appeals held that IJs lack authority to grant such requests.

The remaining contention—that the power to grant a waiver of inadmissibility may be exercised only in favor of an alien who has yet to enter the United States—was at least hinted at by the Board. But the BIA did not rest its decision on this ground. Immigration law has historically applied at least some rules about “admissibility” to aliens already in the United States, see In re Menendez, 12 I&N Dec. 291, 292 (1967); In re Sanchez Sosa, 25 I&N Dec. 807 (2012), and the Secretary of Homeland Security seems to believe that he has the authority to grant waivers of inadmissibility under §1182(d)(3)(A)(ii) to aliens in the United States. See 8 C.F.R. §212.17. If the Secretary can do this, why not the Attorney General? Perhaps neither official can do so, but Chenery prevents us from pursuing that question.

It should be clear from what we have said that the par‐ ties’ arguments about the effects of Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), and Auer v. Robbins, 519 U.S. 452 (1997), are premature. First the Board must address and resolve the essential issues; only then can we consider whether the disposition lies within the scope of the agency’s discretion

Vacated and Remanded

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.

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