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Board of Immigration Appeals Surprised to Discover That It Can't Just Ignore a Federal Appellate Court

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By Joseph Fawbush, Esq. on January 28, 2020 | Last updated on January 29, 2020

In a case that must be considered a sign of the times, an exasperated Seventh Circuit Court of Appeals panel recently vacated a decision by the Board of Immigration Appeals regarding an immigrant's application for waiver of inadmissibility.

The BIA, an administrative agency, chose to ignore a binding federal appeals court opinion in favor of an opposing view held by the U.S. Attorney General. Judge Frank Easterbrook, a longtime member of the Seventh Circuit appointed by President Ronald Reagan, wrote the unanimous decision lambasting the BIA for its failure to adhere to its constitutional obligations. Simply ignoring the Seventh Circuit's earlier opinion “beggars belief," Judge Easterbrook wrote.

Does the Attorney General Have Sole Power to Grant Waivers of Inadmissibility?

The question at issue in the case was whether an immigration judge can exercise the U.S. Attorney General's power to grant waivers of inadmissibility. An immigration judge had granted such a waiver to Jorge Baez-Sanchez, who is seeking to remain in the U.S. on a U visa. The Secretary of Homeland Security's position is that only the Attorney General has the authority to grant waivers of inadmissibility. The BIA agreed and overturned the immigration judge's decision.

On appeal, the Seventh Circuit held that immigration judges can exercise the authority to grant a waiver on behalf of the Attorney General. However, it remanded to the BIA to determine whether any federal law, regulation, or reorganization plan transferred that authority to the Secretary of Homeland Security. The BIA could have also considered whether the waiver of inadmissibility is only available to aliens outside the United States. Finally, the earlier decision noted the BIA could “decide whether to exercise in favor of, or against, Baez-Sanchez whatever discretion the Attorney General possesses."

In other words, the Seventh Circuit provided the BIA with three routes to deny the waiver, if that's what it wanted to do. However, the BIA was either unable or unwilling to understand the opinion and fundamental tenets of constitutional law. Instead, it decided that the Seventh Circuit's decision didn't matter and just issued the same opinion again, citing a footnote in an Attorney General's opinion issued after the Seventh Circuit's decision.

That's Not How Any of This Works

“We have never before encountered defiance of a remand order, and we hope never to see it again," the unanimous panel wrote, adding that the BIA was “lucky" the opposing party did not ask for the panel to hold them in contempt.

For its trouble, the BIA did not get the outcome it clearly wanted. Instead of remanding again, which would “give the Board a free pass for its effrontery," the Seventh Circuit vacated the BIA's decision. Because the BIA's decision was vacated, the waiver of inadmissibility was granted.

The panel also reminded the BIA that, under Article III of the U.S. Constitution, judicial decisions are not subject to revision by another branch of government, even if they disagree. While the BIA can – and, it appears, will – decide the Seventh Circuit's opinion was incorrect in another case, they cannot do so in the same case in which the Seventh Circuit issued its ruling.

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