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Immigration – Removal Order

By: Derek Hawkins//March 2, 2020//

Immigration – Removal Order

By: Derek Hawkins//March 2, 2020//

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7th Circuit Court of Appeals

Case Name: Jorge Baez-Sanchez v. William P. Barr

Case No.: 19-1642

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

Focus: Immigration – Removal Order

Jorge Baez-Sanchez, a citizen of Mexico, is removable as a criminal alien. His conviction for aggravated battery of a police officer renders him inadmissible. 8 U.S.C. §1182(a)(2)(A)(i)(I). He applied to the Department of Homeland Security for a U visa, which would allow him to remain in the United States. The U visa is available to some admissible aliens who have been victims of crime in this country. Baez-Sanchez asked the immigration judge assigned to his case to grant him a waiver of inadmissibility, which would allow the Department of Homeland Security to rule favorably on his visa application. A statute, 8 U.S.C. §1182(d)(3)(A)(ii), permits the Attorney General to waive an alien’s inadmissibility. Exercising that authority, an immigration judge twice granted the request for waiver. After the initial grant, the Board of Immigration Appeals remanded with instructions to consider an additional issue. The immigration judge did so and reaffirmed her decision.

After concluding that an administrative decision is flawed, a court of appeals normally must remand to the agency. See, e.g., Negusie v. Holder, 555 U.S. 511 (2009); Gonzales v. Thomas, 547 U.S. 183 (2006); INS v. Orlando Ventura, 537 U.S. 12 (2002). Yet we 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.

We deem all of the legal questions settled. For the purpose of this proceeding, at least, the Attorney General retains his power to grant waivers of inadmissibility, and immigration judges may exercise that power on the Attorney General’s behalf. An immigration judge has ruled in favor of Baez-Sanchez. If the Department of Justice were contending that the immigration judge had abused her discretion, then we would remand to the Board to address that subject. But the Attorney General’s brief in this court does not ask for a remand on the propriety of granting a waiver to Baez-Sanchez, in particular. The brief the Department of Homeland Security submitted to the Board on remand similarly does not contend that the immigration judge erred, if immigration judges possess the waiver power. 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.

Vacated. Petition for review granted.

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.

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