Baez-Sanchez v. Barr, No. 19-1642 (7th Cir. 2020)Annotate this Case
Baez-Sanchez, a citizen of Mexico, is removable. His conviction for aggravated ba]ery of a police officer renders him inadmissible, 8 U.S.C. 1182(a)(2)(A)(i)(I). He applied for a U visa, which is available to some admissible aliens who have been victims of crime in this country. An IJ granted a waiver of inadmissibility, 8 U.S.C. 1182(d)(3)(A)(ii). The BIA remanded with instructions to consider an additional issue. The IJ did so and reaffirmed. The BIA then concluded that the power to waive inadmissibility belongs to the Attorney General alone and may not be exercised by immigration judges. The Seventh Circuit held that 8 C.F.R. 1003.10(a) permits IJs to exercise all of the Attorney General’s powers, except those expressly reserved by some other regulation. The BIA concluded that the court's decision was incorrect and did not consider the issues remanded by the court. Baez-Sanchez filed another petition for review.
The Seventh Circuit vacated, stating that it had “never before encountered defiance of a remand order.” Article III judicial power is not subject to disapproval or revision by another branch of government. The Attorney General, the Secretary, and the BIA are free to maintain, in another case, that the decision was mistaken but they are not free to disregard a mandate in the very case making the decision. An immigration judge has ruled in favor of Baez-Sanchez; all issues have been resolved. Baez-Sanchez may seek a U visa.