Jorge Baez-Sanchez v. William Barr ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-1642
JORGE BAEZ-SANCHEZ,
Petitioner,
v.
WILLIAM P. BARR, Attorney General of the United States,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals.
No. A206 017 181.
____________________
ARGUED JANUARY 15, 2020 — DECIDED JANUARY 23, 2020
____________________
Before BAUER, EASTERBROOK, and HAMILTON, Circuit
Judges.
EASTERBROOK, Circuit Judge. Jorge Baez-Sanchez, a citizen
of Mexico, is removable as a criminal alien. His conviction
for aggravated ba]ery of a police officer renders him inad-
missible. 8 U.S.C. §1182(a)(2)(A)(i)(I). He applied to the De-
partment of Homeland Security for a U visa, which would
allow him to remain in the United States. The U visa is avail-
able to some admissible aliens who have been victims of
2 No. 19-1642
crime in this country. Baez-Sanchez asked the immigration
judge assigned to his case to grant him a waiver of inadmis-
sibility, 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 A]orney General to
waive an alien’s inadmissibility. Exercising that authority, an
immigration judge twice granted the request for waiver. Af-
ter the initial grant, the Board of Immigration Appeals re-
manded with instructions to consider an additional issue.
The immigration judge did so and reaffirmed her decision.
On appeal to the Board, the Department of Homeland
Security contended that the immigration judge erred in find-
ing that Baez-Sanchez had shown the extraordinary circum-
stances needed to justify a waiver and had abused her dis-
cretion in light of Baez-Sanchez’s criminal history and other
negative equities. The Board did not address either conten-
tion. Instead, relying on Ma6er of Khan, 26 I&N Dec. 797 (BIA
2016), the Board concluded that the power to waive inadmis-
sibility belongs to the A]orney General alone and may not
be exercised by immigration judges.
On petition for review, we held that 8 C.F.R. §1003.10(a)
permits immigration judges to exercise all of the A]orney
General’s powers, except those expressly reserved by some
other regulation. Baez-Sanchez v. Sessions, 872 F.3d 854 (7th
Cir. 2017). No other regulation withdraws from immigration
judges the power under §1182(d)(3)(A)(ii), which means that
the BIA erred. See also L.D.G. v. Holder, 744 F.3d 1022 (7th
Cir. 2014).
Because the Board had not addressed any other question,
principles of administrative law meant that we could not do
so either. See SEC v. Chenery Corp., 318 U.S. 80, 87–88 (1943).
No. 19-1642 3
We remanded with instructions to consider two possibilities
that the A]orney General had raised in defense of the
Board’s decision: first, that some statute, regulation, or reor-
ganization plan transferred to the Secretary the A]orney
General’s power to waive inadmissibility; second, that the
power to waive inadmissibility may be exercised only in fa-
vor of aliens who apply from outside the United States. 872
F.3d at 856–57. We added that the Board also (or perhaps in-
stead) could “decide whether to exercise in favor of, or
against, Baez-Sanchez whatever discretion the A]orney
General possesses.” Id. at 857.
What happened next beggars belief. The Board of Immi-
gration Appeals wrote, on the basis of a footnote in a le]er
the A]orney General issued after our opinion, that our deci-
sion is incorrect. Instead of addressing the issues we speci-
fied, 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 in-
admissibility. The Board did not rely on any statute, regula-
tion, or reorganization plan transferring the waiver power
under §1182(d)(3)(A)(ii) from the A]orney General to the
Secretary. Nor did the Board discuss whether only aliens
outside the United States may apply for relief under
§1182(d)(3)(A)(ii). Likewise the Board did not consider
whether Baez-Sanchez is entitled to a favorable exercise of
whatever discretion the A]orney General retains. In sum,
the Board flatly refused to implement our decision. Baez-
Sanchez has filed a second petition for review.
We have never before encountered defiance of a remand
order, and we hope never to see it again. Members of the
Board must count themselves lucky that Baez-Sanchez has
4 No. 19-1642
not asked us to hold them in contempt, with all the conse-
quences that possibility entails.
The Board seemed to think that we had issued an adviso-
ry opinion, and that faced with a conflict between our views
and those of the A]orney General it should follow the la]er.
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 deci-
sions, not subject to disapproval or revision by another
branch of government. See, e.g., Plaut v. Spendthrift Farm,
Inc., 514 U.S. 211 (1995). We acted under a statutory grant of
authority to review the Board’s decisions. 8 U.S.C.
§1252(a)(1). Once we reached a conclusion, both the Consti-
tution and the statute required the Board to implement it.
A judicial decision does not require the Executive Branch
to abandon its views about what the law provides, for the
doctrine of offensive non-mutual issue preclusion does not
apply to the United States. United States v. Mendoza, 464 U.S.
154 (1984). The A]orney General, the Secretary, and the
Board are free to maintain, in some other case, that our deci-
sion is mistaken—though it has been followed elsewhere, see
Meridor v. A6orney General, 891 F.3d 1302, 1307 & n.8 (11th
Cir. 2018). 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. See, e.g., United States v. Stauffer Chemical Co., 464 U.S.
165 (1984). The Solicitor General did not ask the Supreme
Court to review our decision, and the Department of Justice
is bound by it.
The A]orney General’s brief in this court does not de-
fend the Board’s decision—but neither does it confess error.
No. 19-1642 5
Instead it asks us to remand so that the Board may “address
in an authoritative decision whether an immigration judge
may adjudicate an application for a nonimmigrant waiver
under 8 U.S.C. §1182(d)(3)(A)(ii) in removal proceedings.”
The request is bizarre. We have already held that immigra-
tion judges do possess this power, if the A]orney General
himself retains it. We directed the Board to consider whether
the power has been transferred by statute, regulation, or re-
organization plan to the Secretary of Homeland Security.
The Board chose not to address that question, and we are
hardly going to remand so that the Board can write another
opinion about whether we erred in construing 8 C.F.R.
§1003.10(a). That’s water under the bridge. The A]orney
General contends that a new decision by the Board could be
entitled to deference under Kisor v. Wilkie, 139 S. Ct. 2400(2019), but we held that the regulation is unambiguous. An
agency is entitled to reinterpret an ambiguous regulation,
see National Cable & Telecommunications Association v. Brand X
Internet Services, 545 U.S. 967 (2005), but cannot rewrite an
unambiguous one through the guise of interpretation.
Change requires rulemaking.
The only remaining question is what should happen
next. 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); Gon-
zales 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 defer-
ence. The Board had that opportunity and disdained it. An-
other remand would do li]le beside give the Board a free
6 No. 19-1642
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 se]led. For the pur-
pose of this proceeding, at least, the A]orney General retains
his power to grant waivers of inadmissibility, and immigra-
tion judges may exercise that power on the A]orney Gen-
eral’s behalf. An immigration judge has ruled in favor of Ba-
ez-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 A]orney 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 Home-
land Security submi]ed to the Board on remand similarly
does not contend that the immigration judge erred, if immi-
gration 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 deci-
sion 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.