7CA Judge not happy with AG Barr

[Chris0nllyn]

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.

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... 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.

http://media.ca7.uscourts.gov/cgi-b...9-1642:J:Easterbrook:aut:T:fnOp:N:2462983:S:0

 

[Gilligan]

So the little scumbag criminal gets to stay?

 

[jrt_ms1995]

http://media.ca7.uscourts.gov/cgi-b...9-1642:J:Easterbrook:aut:T:fnOp:N:2462983:S:0

"... 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."

If only the Cherokee had been aware of this!

 

[PsyOps]

Well Chris, I will assume your lack of comment should be interpreted as - you're only the messenger.

That said... Jorge Baez-Sanchez is a Mexican citizen. He was convicted of aggravated assault on a police officer. As I understand it, this story goes back to 2014.

8 U.S.C. § 1182

(2) Criminal and related grounds
(A) Conviction of certain crimes
(i) In generalExcept as provided in clause (ii), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of—
(I) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime, or
 is inadmissible.

In other words, the person should be deported.

 

[Chris0nllyn]

Well Chris, I will assume your lack of comment should be interpreted as - you're only the messenger.

That said... Jorge Baez-Sanchez is a Mexican citizen. He was convicted of aggravated assault on a police officer. As I understand it, this story goes back to 2014.

8 U.S.C. § 1182

(2) Criminal and related grounds
(A) Conviction of certain crimes
(i) In generalExcept as provided in clause (ii), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of—
(I) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime, or
 is inadmissible.

In other words, the person should be deported.

Psy, I can only assume by your first sentence that you'll be as equally adament that GURPS provide comment on the thousands of threads he starts without comment.

You're correct about that law. The law also allows victims of crimes to apply for a special Visa (U Visa). An immigration judge granted it, twice. The Board of Immigration Appeals reversed that decision claiming that only the AG can issue special waivers, not judges. Sanchez appealed the the 7CA and Judge Easterbrook (a long time conservative speaker at the Federalist Society and favored by the late Justice Scalia to replace him) disagreed and remanded the case with an order to comply with the immigration judge's decision. Barr stepped in and refused to do that basically "because".

In other words, the judge's decision is final and he can stay.

Are you okay with an Attorney General, any AG, disregarding a judge's decision because they want to? Is that the government you want?

 

[PsyOps]

Psy, I can only assume by your first sentence that you'll be as equally adament that GURPS provide comment on the thousands of threads he starts without comment.

All due respect to GURPS, but I just can't keep up with his incessant postings. Besides, you're a lot more fun to engage in.

 

[PsyOps]

Are you okay with an Attorney General, any AG, disregarding a judge's decision because they want to? Is that the government you want?

You believe Barr did this simply because he wanted to? It seems to me he's complying with existing law, which I cited in post #4. Do laws mean anything to you?

 

[Chris0nllyn]

You believe Barr did this simply because he wanted to? It seems to me he's complying with existing law, which I cited in post #4. Do laws mean anything to you?

I started a thread about defiance of a law and judges orders and you ask me that?

I don't think it's Barr and Barr alone in all this (as evidenced in the order), but Barr was specifically mentioned in the order (not to mention that case name). From the judges order:

A statute, 8 U.S.C. §1182(d)(3)(A)(ii), permits the Attorney General to waive an alien’s inadmissibility. Exercising that authority, an immigration judge twice granted the request for waiver. After the initial grant, the Board of Immigration Appeals remanded 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 finding that Baez-Sanchez had shown the extraordinary circumstances needed to justify a waiver and had abused her discretion in light of Baez-Sanchez’s criminal history and other negative equities. The Board did not address either contention. Instead, relying on Matter of Khan, 26 I&N Dec. 797 (BIA 2016), the Board concluded that the power to waive inadmissibility belongs to the Attorney 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 Attorney General’s powers

It then goes on to explain that the case was remanded with instructions to consider if some other statute, regulation, or anything else exists that backs up the Board's decision that it's only up the the AG to waive inadmissibility. They didn't.

I'm not lawyer, but 8 C.F.R. §1003.10(a) seems pretty clear.

(a) Appointment. The immigration judges are attorneys whom the Attorney General appoints as administrative judges within the Office of the Chief Immigration Judge to conduct specified classes of proceedings, including hearings under section 240 of the Act. Immigration judges shall act as the Attorney General's delegates in the cases that come before them.

So, yea, the law does matter to me. And the law states that judges can grant the waivers. The govt. has decided they don't agree with that law and simply told the judge "You're wrong and we'll ignore your ruling". That's the antithesis of our Constitutional system. Yet you ask me if the laws mean anything.

As Judge Easterbrook said:

In sum, the Board flatly refused to implement our decision.

Is this the government you want?

 

[GURPS]

you'll be as equally adament that GURPS provide comment on the thousands of threads

Piss Off

 

[PsyOps]

So, yea, the law does matter to me. And the law states that judges can grant the waivers. The govt. has decided they don't agree with that law and simply told the judge "You're wrong and we'll ignore your ruling". That's the antithesis of our Constitutional system. Yet you ask me if the laws mean anything.

I'm not a lawyer either, but I think common sense would dictate that, if the AG appoints immigration judges, then that AG has authority over them, and their decisions and can override them... thus sections B, C, and D:

(b) Powers and duties. In conducting hearings under section 240 of the Act and such other proceedings the Attorney General may assign to them, immigration judges shall exercise the powers and duties delegated to them by the Act and by the Attorney General through regulation. In deciding the individual cases before them, and subject to the applicable governing standards, immigration judges shall exercise their independent judgment and discretion and may take any action consistent with their authorities under the Act and regulations that is appropriate and necessary for the disposition of such cases. Immigration judges shall administer oaths, receive evidence, and interrogate, examine, and cross-examine aliens and any witnesses. Subject to §§ 1003.35 and 1287.4 of this chapter, they may issue administrative subpoenas for the attendance of witnesses and the presentation of evidence. In all cases, immigration judges shall seek to resolve the questions before them in a timely and impartial manner consistent with the Act and regulations.

(c) Review. Decisions of immigration judges are subject to review by the Board of Immigration Appeals in any case in which the Board has jurisdiction as provided in 8 CFR 1003.1.

(d) Governing standards. Immigration judges shall be governed by the provisions and limitations prescribed by the Act and this chapter, by the decisions of the Board, and by the Attorney General (through review of a decision of the Board, by written order, or by determination and ruling pursuant to section 103 of the Act).

And I don't see how a Code of Federal Regulations (CFR) overrides a US law; in this case 8 U.S.C. § 1182, which states that "any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of, is inadmissible".

I see Barr acting completely within his authority. Those judges are subject to his review and final decision.

 

[Chris0nllyn]

I see Barr acting completely within his authority. Those judges are subject to his review and final decision.

You are correct that 8 U.S.C. §1182(a)(2)(A)(i)(I) in itself would make him inadmissible.

But, like many laws, 8 U.S.C has exceptions. Notably, 8 U.S.C. §1182(d)(3)(A)(ii) which states that the AG may grant a waiver to allow nonimmigrants to stay in the country as a nonimmigrant.

Except as provided in this subsection, an alien (i) who is applying for a nonimmigrant visa and is known or believed by the consular officer to be ineligible for such visa under subsection (a) (other than paragraphs (3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), and clauses (i) and (ii) of paragraph (3)(E) of such subsection), may, after approval by the Attorney General of a recommendation by the Secretary of State or by the consular officer that the alien be admitted temporarily despite his inadmissibility, be granted such a visa and may be admitted into the United States temporarily as a nonimmigrant in the discretion of the Attorney General, or (ii) who is inadmissible under subsection (a) (other than paragraphs (3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), and clauses (i) and (ii) of paragraph (3)(E) of such subsection), but who is in possession of appropriate documents or is granted a waiver thereof and is seeking admission, may be admitted into the United States temporarily as a nonimmigrant in the discretion of the Attorney General. The Attorney General shall prescribe conditions, including exaction of such bonds as may be necessary, to control and regulate the admission and return of inadmissible aliens applying for temporary admission under this paragraph.

8 C.F.R. §1003.10(a) permits immigration judges to exercise all AG's powers except those reserved in another regulation somewhere under the Immigration and Nationality Act. While it is a CFR, it's essentially detailing who has the AG powers noted in the USC.

And since the AG's office was unable to produce evidence that the judge's decision in this case is not valid because of another regulation specifically excludes a judge's ability to do so, the judge's ruling stays put and the guy gets to stay as a nonimmigrant.

 

[PsyOps]

You are correct that 8 U.S.C. §1182(a)(2)(A)(i)(I) in itself would make him inadmissible.

But, like many laws, 8 U.S.C has exceptions. Notably, 8 U.S.C. §1182(d)(3)(A)(ii) which states that the AG may grant a waiver to allow nonimmigrants to stay in the country as a nonimmigrant.


8 C.F.R. §1003.10(a) permits immigration judges to exercise all AG's powers except those reserved in another regulation somewhere under the Immigration and Nationality Act. While it is a CFR, it's essentially detailing who has the AG powers noted in the USC.

And since the AG's office was unable to produce evidence that the judge's decision in this case is not valid because of another regulation specifically excludes a judge's ability to do so, the judge's ruling stays put and the guy gets to stay as a nonimmigrant.

And in this case the AG did not grant the waiver. You're running in circles with this. The AG has authority over the immigration courts to reject their findings.

 

[Chris0nllyn]

And in this case the AG did not grant the waiver. You're running in circles with this. The AG has authority over the immigration courts to reject their findings.

By extension, yes he did.

The AG delegated their powers to these judges. That's spelled out in the CFR.

The immigration judges are attorneys whom the Attorney General appoints as administrative judges within the Office of the Chief Immigration Judge to conduct specified classes of proceedings, including hearings under section 240 of the Act. Immigration judges shall act as the Attorney General's delegates in the cases that come before them.

The immigration court is the AG.