What happened next beggars belief. The Board of Immigration Appeals wrote, on the basis of a footnote in a le]er the A]orney General issued after our opinion, that our decision is incorrect.
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 not asked us to hold them in contempt, with all the consequences that possibility entails.
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 later. 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.
We acted under a statutory grant of authority to review the Board’s decisions. Once we reached a conclusion, both the Constitution 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.
The Attorney General, the Secretary, and the Board are free to maintain, in some other case, that our decision is mistaken—though it has been followed elsewhere, ... 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... The Solicitor General did not ask the Supreme Court to review our decision, and the Department of Justice is bound by it.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2020/D01-23/C:19-1642:J:Easterbrook:aut:T:fnOp:N:2462983:S:0The 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... 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.