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The Seventh Circuit Court of Appeals issued a scathing takedown yesterday of the Department of Justice’s Board of Immigration Appeals’ refusal to apply the law in a case litigated by the National Immigrant Justice Center, that has been ongoing since 2015.   

Mr. Baez-Sanchez was robbed at gunpoint when he was a young teenager. Though shaken and scared, he and his father called the police, who were able to apprehend the robbers a few blocks away. Even though he faced serious dangers in cooperating with the police, he still appeared to testify on the day of trial, where the robbers pled guilty. On this basis, the police certified that Mr. Baez-Sanchez had cooperated with them in bringing the robbers to justice. Because of that cooperation, he became eligible for a form of immigration relief known as the U visa.

By creating the U visa, Congress aimed to fix a longstanding problem: when an undocumented person is a victim of a crime, such as domestic violence or other violent crimes, she may be afraid to approach local police to report the crime for fear of being deported. (A fear which is not unreasonable.) The U visa allows the noncitizen to ask the Department of Homeland Security for permission to remain in the United States temporarily, if local law enforcement certifies that they’ve been helpful in the prosecution or investigation, and eventually allows them to seek permanent legal status in the U.S. The U visa has made important gains in restoring and strengthening trust between immigrant communities and law enforcement, and helping people come forward to seek help who otherwise might feel that speaking out could result in their deportation and permanent separation from their families and communities. 

Unfortunately, federal bureaucracy doesn’t always cooperate with this goal. The U visa is handled by a component of the Department of Homeland Security (DHS); and it is severely backlogged. If a noncitizen with a pending U visa is placed into deportation proceedings, the immigration courts refuse to delay the case. The Board reasons that it has no control over how long it may take DHS to decide the U visa application, so it orders the applicant removed.  

NIJC argues that even if immigration courts cannot grant U visas, they do have authority to consider waiver applications filed by U applicants. Where a waiver is granted, deportation proceedings should be stopped, and the victim should be allowed to stay in the United States to get a decision on the U visa application (and if it is granted, to remain in the U.S. with legal U visa status). NIJC’s pathbreaking work in this area has included several cases.  

The first NIJC victory on this issue was L.D.G. v. Holder, 744 F.3d 1022 (7th Cir. 2014). Construing the relevant statutes, case law and regulations, the Seventh Circuit agreed that noncitizens can seek a waiver of inadmissibility in court, even if DHS will be deciding the rest of their U visa application L.D.G. was later adopted by the Eleventh Circuit in Meridor v. Attorney General, 891 F.3d. 1302 (11th Cir. 2018).

But the Board of Immigration Appeals disagreed. In Matter of Khan, 26 I&N Dec. 797 (BIA 2016), the Board held that Immigration Judges do not have authority to grant waivers to U visa applicants. (The Third and Ninth Circuits reached the same result, by slightly different reasoning.) An immigration judge had granted Mr. Baez-Sanchez a U visa waiver, but after Matter of Khan, the Board held that the immigration judge had no authority to grant the waiver, so it ordered removal. NIJC appealed. 

In 2017, the Court agreed with us, rejecting Matter of Khan in Baez-Sanchez v. Sessions, 872 F.3d 854 (7th Cir. 2017). However, in light of the deference given to federal agencies, the Court remanded the case to allow the Board to consider any other arguments that might lead it to find the U visa unavailable to Mr. Baez-Sanchez.  

On remand, the BIA ruled against Mr. Baez-Sanchez again, but its decision didn’t consider any alternative reasoning; it simply disagreed with the Seventh Circuit’s first holding. This was improper: the remand gave the Board an opportunity to consider other arguments that might have led to a decision against Mr. Baez-Sanchez, but it didn’t allow the Board to simply disagree with the Court of Appeals. Mr. Baez-Sanchez appealed again to the Seventh Circuit, which overruled the Board. The Seventh Circuit wrote: 

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 flatly refused to implement our decision… 

We have never before encountered defiance of a remand order, and we hope never to see it again…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 latter. 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… Once we reached a conclusion, both the Constitution and the statute required the Board to implement it.
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…
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.

Mr. Baez-Sanchez’s case is a reminder that the U.S. system of checks and balances is not an abstract democratic ideal, but a critical protection for people and communities. In this case, justice prevailed, but only because our Constitution gives courts rather than immigration agencies the final word in interpreting the laws passed by Congress.