Judges

The BIA Is Behaving Badly (and Judge Easterbrook Is Not Amused)

In which the Board of Immigration Appeals decides it can ignore appellate court rulings and is nearly held in contempt.

|The Volokh Conspiracy |

Much of legal twitter is abuzz about Judge Frank Easterbrook's brief yet blistering opinion in Baez-Sanchez v. Barrin which he expresses incredulity at the Board of Immigration Appeals' apparent willingness to disregard a decision of a reviewing appeals court.

The opinion should be read for the full effect, so here it is:

Jorge Baez-Sanchez, a citizen of Mexico, is removable as a criminal alien. His conviction for aggravated battery of a police officer renders him inadmissible. 8 U.S.C. § 1182(a)(2)(A)(i)(I). He applied to the Department of Homeland Security for a U visa, which would allow him to remain in the United States. The U visa is available to some admissible aliens who have been victims of crime in this country. Baez-Sanchez asked the immigration judge assigned to his case to grant him a waiver of inadmissibility, 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 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, 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). We remanded with instructions to consider two possibilities that the Attorney General had raised in defense of the Board's decision: first, that some statute, regulation, or reorganization plan transferred to the Secretary the Attorney General's power to waive inadmissibility; second, that the power to waive inadmissibility may be exercised only in favor of aliens who apply from outside the United States. 872 F.3d at 856–57. We added that the Board also (or perhaps instead) could "decide whether to exercise in favor of, or against, Baez-Sanchez whatever discretion the Attorney General possesses." Id. at 857.

What happened next beggars belief. The Board of Immigration Appeals wrote, on the basis of a footnote in a letter the Attorney General issued after our opinion, that our decision is incorrect. Instead of addressing the issues we specified, 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 inadmissibility. The Board did not rely on any statute, regulation, or reorganization plan transferring the waiver power under § 1182(d)(3)(A)(ii) from the Attorney 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 Attorney 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 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 latter. 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. 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 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. United States v. Mendoza, 464 U.S. 154 (1984). 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, see Meridor v. Attorney 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 Attorney General's brief in this court does not defend the Board's decision—but neither does it confess error. 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 immigration judges do possess this power, if the Attorney General himself retains it. We directed the Board to consider whether the power has been transferred by statute, regulation, or reorganization 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 Attorney 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); Gonzales 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 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. That's not the goal of the remand rule. Baez-Sanchez has waited long enough.

We deem all of the legal questions settled. For the purpose of this proceeding, at least, the Attorney General retains his power to grant waivers of inadmissibility, and immigration judges may exercise that power on the Attorney General's behalf. An immigration judge has ruled in favor of Baez-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 Attorney 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 Homeland Security submitted to the Board on remand similarly does not contend that the immigration judge erred, if immigration 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 decision 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.

NEXT: Short Circuit: A Roundup of Recent Federal Court Decisions

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  1. Good for the Board. The Reinhardt Principle in action.

    The immigration judge and the C/A was going to let him stay no matter what, open defiance didn’t cost anything.

    1. You wouldn’t be saying that if the Board ignored a judicial decision so that it could act in favor of an immigrant I assume?

      Perhaps you need some perspective about how not good the Board’s behavior was. Imagine if a court ordered officials to release a prisoner and the officials decided not to seek any other judicial relief and merely declined to release the prisoner. Would this be a good system to you? What good are courts if orders in individual cases are simply ignored?

      Also there is the small problem of the Board members happening to all be lawyers. It’s not only “not good” it’s also a breach of their professional ethics.

      1. “What good are courts if orders in individual cases are simply ignored? ”

        Federal courts have too much power, we would be better off if they were ignored more often.

        Nothing happened, the felon can stay until the inevitable next felony.

        1. Jesus. You are just not a good person, are you?

          1. Shame he isn’t Bob from Georgia so you can just write it off as clinging – – – –

            1. Are Georgians famous for nihilism and win-at-all costs situational ethics? Because that’s what Bob’s comments often amount to.

          2. No he isn’t.

            It’s worth remembering Frank Easterbrook isn’t some flaming liberal. He’s a very famous, very conservative judge who has been on the bench a long time. But he’s still a judge.

            And despite John Roberts’ “umpire” analogy being both somewhat problematic and something of a cliche, here I would think it applies. If the law requires a decision in favor of an immigrant, you can’t refuse to issue it because you don’t like the immigrant, any more than an umpire should call a pitch a strike which is outside the strike zone because he doesn’t like the batter.

        2. Why do scumbag authoritarians read Reason?

          1. I don’t know why this plays draws so many Lefties.

            1. Because the posts are generally intelligent and thought-provoking. The comment section, not so much.

    2. The “Reinhardt Principle”? That one’s new to me. Explanation, please?

      But no, not good for the Board. If they sincerely thought that the immigration judge and appeals court were going to let him stay no matter what, the proper course of action would be an appeal to the next court up the chain. They apparently didn’t even attempt that.

      1. “Did you mean Reinhardt principal?? Here’s a list of school principals named Reinhardt.”

        1. perhaps he meant “Reinhard”

    3. Its too late to get rid of him. They probably already have his name on the ballot harvesting lists for each election and it’s a pain in the arse to do anything but add to those things. Progs need criminals to vote for them until death.

      And long after…

    4. I don;t get the problem when the statute gives the AG the power to overturn something and the AG declines to do so.

      If the AG didn’t have the option, then the statute wouldn’t have said he did.

    5. This is a lot of wasted effort and legal mumbo-jumbo. The issuance of the U Visa is still up to DHS, the court has not ruled otherwise, and it is certainly not likely to be granted in any case. The delays just give him a chance to commit additional crimes and harm legal citizens. It seems a bizarre twist of the law that the court can usurp the powers granted to the attorney general. Too many cooks may spoil the soup, but too many attorneys certainly fuck up the country.

  2. Aggravated Battery of a Police Officer. And Easterbrook wants to let this fine gentleman stay.

    I wonder if his next crime will be Aggravated Battery of a Federal Judge? It’s only fair to have some skin in the game…

    1. What he wants is the Board to follow the law. You expect the alien to follow the law, why not the Board? Are they too good for that?

      1. “What he wants is the Board to follow the law. You expect the alien to follow the law, why not the Board? Are they too good for that?”

        “A statute, 8 U.S.C. § 1182(d)(3)(A)(ii), permits the Attorney General to waive an alien’s inadmissibility.”

        The law PERMITS. It does not REQUIRE. I fail to see the issue.

    2. Maybe, just maybe, you should not assume that all police are Fine Gentlemen, and that maybe, Just Maybe, the so-called battery was no such thing. It has happened.

      1. An interesting argument, one that the gentleman’s lawyer failed to present. We can assume that he indeed committed aggravated assault.

        1. No, we can only assume the courts decided that. I do not have enough much faith in our judicial system to assume that is a certainty, and the fact that this court at least seems to think it not an invalidating factor makes me more suspicious.

          1. By “courts” you mean “jury”?

    3. “Easterbrook wants to let this fine gentleman stay.”

      His crime pales to thereal crime of not listening to a god like federal judge.

      1. Lesseeeee …. battery on a cop is Terrible Bad because the cop is an agent of The Justice System.

        Ignoring a judge is …. ok? …. because police outrank judges? or what?

        1. Well, this is certainly a perspective.

    4. Neither Easterbrook nor the immigration judge said anything about letting him stay. The immigration judge cancelled inadmissibility only, not removability. He can only stay if he is granted the U Visa which is not in the judges jurisdiction that belongs to DHS. Easterbrook only said that the BIAs reason for reversing, “that the judge didn’t have that power on the AG did”, was incorrect as a matter of law but remanded to determine other questions including whether she abused her power or that the power was transferred to the Sec of DHS. The BIA ignored that and DHS and AG didn’t even argue that on the remand. That is why in this opinion he considers all the legal questions settled. Never once said that he should stay because that was not the question before the immigration judge or the circuit court.

    5. You don’t much care for due process, do ya?

      1. As a legal immigrant myself, I have little tolerance for those who abuse this country’s hospitality.

        The fine gentleman has had plenty of due process already.

        1. Yah, so you often eagerly tell everyone. It doesn’t provide cover for you like you think it does though.

          The fine gentleman has had plenty of due process already. is just straight up fascist though.
          You don’t get to decide when to stop using the procedures laid down. Unless you are like stalk. Or something.

          1. If you ever conclude that the amount of process that is due has been exhausted, thats “straight up fascist.”

            Please consider migrating your posting to Twitter.

            1. YOU don’t get to conclude that. We have rules about how to conclude that.

              Rule of laws, not men. Ever heard of that?

          2. Fascist, another term sarcastro misuses.

            1. ‘Oh, I think you’ve had enough due process’ wouldn’t be out of place coming out of some fascist dictator’s mouth, no?

      2. I’m just confused a bit by the reporting.
        Somehow this guy is simultaneously an inadmissible felon and a candidate for a visa as a crime victim.

        1. The inadmissibility can be cancelled. That is what the suit was about. He asked that it be cancelled so that he could apply for the U Visa. If it wasn’t cancelled he would not be eligible for the visa.

          1. But the law doesn’t require the AG to go along. Again, he MAY but he does not HAVE TO.

            The AG, going by the law, can tell the Court to go fuck off.

            1. Maybe you should read the case. The regulations allow the IJ to exercise the power of the AG. The IJ did so and waived inadmissibility. The case was whether the IJ had that power or if only the AG does. The court said it did and the BIA then ignored that. The court is in no way requiring the AG or IJ to waive anything.

        2. He can’t make this stuff up what a joke. Should be a movie how to use your government both for and against you. Isn’t the primary role of government to protect it’s citizens. What point is it to usurp the attorney generals powers for consideration when UVisa can be only be granted by the same Attorney General, LoL.

    6. I see no evidence that Easterbrook wants this guy to stay. I don’t even see strong evidence that the original administrative law judge wants him to stay. The original judge just wants the guy to have his chance to make his case to the Dept of Homeland Security. Remember that DHS is who actually gets to decide whether he can stay or not. And Easterbrook just wants the BIA to follow the process as it’s written, not arbitrarily make up their own rules.

      You talk about having some skin in the game. Maybe Easterbrook is thinking that the BIA’s next crime and wonding if they will continue bending the rules until they can “deport” anyone who disagrees with them.

      1. Can we please have an edit button? That should have been:
        “… thinking about the BIA’s next crime and wondering …”

  3. I wonder if he battered the cop’s knuckles with his head, or if he battered the cop’s foot with his testicles.

    1. I know nothing about the underlying facts of the case, but that comment made me LOL.

  4. So the Attorney General is actually any Judge?
    So voting for a party to get that party in power through the ballot box, and then having that partry’s executive appoint an AG from that party, just means if a judge from another political persuasion gets the case, your vote is vetoed?
    The things you can learn on the web –

    1. That’s based on a regulation. A regulation DOJ is free to change with notice and comment. No party wants to do that because they don’t want the political fall out for their decisions.

      1. The previous submission by the DoJ asked the Court to remand so that it could be determined if the immigration judge did, in fact, have the authority to waive the criminal-conviction inadmissibility bar due to some law or regulation.

        Instead, this Court said “We’re Article III judges! You WILL obey!” They straight up declared that since this Court had already decided, there was no allowance for an actual presentation of evidence or argument.

        1. The court determined the IJ has the power if the AG does and remanded for the BIA to determine if the AG has the power or was transferred to the Sec of DHS. The BIA then AGAIN just repeated its decision from before that the court already reversed. The DOJ when it went back to the court asked for it to be remanded again to the BIA to decide the question the court had already remanded to the BIA that it decided not to answer regarding transfer of the power to DHS. The court said no you don’t get two remands for the same issue.

          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. That’s not the goal of the remand rule.

  5. § 1182(d)(3)(A)(ii)

    Too many parentheses; maybe laws should be simpler to read and interpret. Like “You can’t come into this country illegally. If you do , we will send you back.”

  6. Or for a better summary.

    1) AG delegates certain powers to immigration judges.
    2) Judge uses one of those powers
    3) Judge’s review board says “you don’t actually have that power”
    4) Circuit court “Oh yes, that judge did have that power delegated to him”
    5) Review board goes its boss, the AG, and asks “did you delegate this?” AG goes “Nah, not really” in an offhand conversation.
    6) Review board goes….umm, we’re going with our Boss on what he actually delegated, not on what the circuit court thinks he delegated.
    7) Circuit court. “HOW DARE YOU!!!”

    1. 8) It is emphatically the province of the judiciary to say what the law is.

      1. Normally, I’d agree with you. But…
        1. The review board is a group of lawyers/judges extremely well versed in immigration law. It is their specialty, whereas the 5th circuit is more general.

        2. There’s a second decision from the 3rd Circuit that says immigration judges don’t have the authority to give U Visa waivers. (Sunday v. Attorney General US, 15-1232, 3rd circuit)

        3. There is a 3rd decision from the 9th circuit (Man v Barr, 2019) that ALSO supports BIA’s interpretation that Immigration Judges can’t issue U Visa waviers

        4. The conclusion of the BIA basically goes “It looks like you gave us wiggle room in your decision, and there are two other circuit court decisions that go the other way. So, we’re going to go with a unified policy nation wide”.

        1. The judiciary has a chain of seniority. You don’t ignore it because the trial court are experts.

          Especially since the issue here isn’t immigration law, it’s administrative law. Which comes up a decent amount in appellate practice I hear.

          Your giving excuses for ignoring the law. Don’t do that.

        2. 1. That is why BIA opinions normally get deference. But that deference only applies if the statutes and regulations are ambiguous. The 7th Circuit in this case said they aren’t (admittedly the 9th did in the Mann case). But it is also completely non controversial that different circuits can come to different conclusions and the case is determined based on that circuits precedent, not a sister circuits. And specifically a decision in a specific case can not be ignored, that is the law of the case.

          2. Different arguments though, and in important ways. In Sunday the 3rd Circuit didn’t say that the IJ can’t exercise the powers of the AG. It said that this power in regards to U Visas (that is waiver of inadmissibility) has been transferred to DHS and out of the AGs power (and therefore the IJ). That is a different argument then the one originally made here and one that the first 7th Circuit decision remanded back to BIA to determine. So the 7th Circuit didn’t call into question the 3rd Circuit decision. The BIA could have ruled that way and it would be perfectly compliant with the original decision.

          3. As stated above the difference was the 9th Circuit saying the statutes were ambiguous and therefore deference rules. The 7th Circuit disagreed on ambiguity. That is the law of this case. They were free to appeal to SCOTUS if they wanted. They didn’t.

          4. I don’t see where the wiggle room is, and neither did the 7th Circuit. They remanded several questions that the BIA could have relied on, but not the one that BIA decided to ignore and reaffirm the previous decision (that the IJ has the powers that are vested in the AG)

          1. Let me say first, I deeply appreciate the full critique. With that.

            1. “But that deference only applies if the statutes and regulations are ambiguous.”

            In fact, the 7th circuit DID say they were ambiguous. In their earlier decision (LDG v Holder) on page 17, the 7th circuit literally says “This is the best we can make of an ambiguous statutory scheme.” They ruled on it anyway. But they ALSO said it was ambiguous.

            2. I don’t disagree. In fact, I believe that neither the AG nor the IJs should be able to issue waivers for inadmissibility under U-visa conditions. But try getting a department to give up powers… Anyway, it’s the same end result. IJ’s can’t issue it.

            3. There is now a disagreement between the circuits. I would expect an appeal now.

            4. See point 1.

            At the end of the day, given the 7th Circuit’s new decision, I would now expect an appeal to the SCOTUS, if for no other reason than to unify nationwide the different opinions. I would also likely expect the SCOTUS to rule against the 7th here. Whether it falls to the 9th or 3rd’s ruling is unclear. I’d probably expect the 3rd’s ruling, but it could go either way.

            1. For 1 and 3 I should have been more clear. The 7th Circuit said the regulation implementing the statutes was unambiguous…”but we held that the regulation is unambiguous.” These are in regard solely to the regulations on whether the IJ has the authority to exercise the powers granted to the AG. The case you refer to again is about the ambiguity in possible transfer of the waiver decision is U Visa cases from the AG to DHS not the question of whether the IJ can exercise powers that are granted to the AG.

              The importance is not conflating the AG to IJ power and the possible transfer of this to the DHS. Because the former has wider application.

              The BIA said nothing of the latter question and that is where the full statutory scheme is ambiguous. They only answered the former where they have regulated in response to the statutes and that was unambiguous. Then on remand they could have said there is ambiguity as to whether the power has been transferred to DHS and we hold it is that would have 1) not ignored the original decision and 2) probably have been upheld at least under deference.

              Yes it may have gotten to the same spot, but the reasoning is not the same and is important because the BIAs decision is one of greater applicability (AG to IJ power is of more general applicability than just the question of waiver in U Visa cases) than would the other reason of ambiguity when it comes to U Visa’s statutory and regulatory scheme. So it is important that the 7th Circuit held firm to no allow the stated decision to stand if it felt is was wrong.

            2. I doubt the Court would accept an appeal in this case (ignoring that a bet against cert is usually a good one), precisely because of the procedural posture of the case.

              The government can’t appeal the part there’s arguably a circuit split on – that ruling was many months ago and the time to appeal has long since expired. All they can appeal now is whether a circuit court can decide an underlying question of law if the lower court refuses to comply with a court order – and the answer to that is assuredly NO – lower courts are bound by higher courts.

              It would also open up the BIA to a new motion for sanctions from the deportee-appellant – sanctions that are alluded to in Easterbrook order, and which could include pretty severe penalties, including jail time.

  7. I prefer the old term, “collateral estoppel”.

  8. Given Judge Easterbrook’s open defiance of SCOTUS precedent in other areas of law (see Friedman v. City of Highland Park), it seems to me that perhaps Judge Easterbrook should practice what he preaches.

    1. It was such open defiance that the Court didn’t even grant cert.

      1. To the clingers, that constitutes evidence that the Deep State has something on Chief Justice Roberts and perhaps one or two of the other right-wingers on that bench.

  9. The conservatives in this thread provide a stark divider between those willing to abide by the rule of law and those who care only about getting their way.

    Those into rule of law, note how you are outnumbered. And as this is a legal blog the sample bias is probably favoring you…

    1. The ‘rule of law’ in this matter is that illegals shouldn’t be here in the first place and refugees should actually be in need and state and local authorities shouldn’t actively be using taxpayer money to help murderers flee federal authorities. Hows that working out for us?

      1. If you want a thing due to rule of law concerns you should also care about getting it via rule of law methods.

        You do not. I therefore conclude your reasons have to do with something other than rule of law, and you go on about rule of law to hide it.

        1. Theres moral law and then theres legal framework. The latter has been treated as merely a tool to an end by everybody, most of all the Left. I’m merely pointing out your hypocrisy as you and others suddenly peacock as some sort of paladin for nonpartisan order and that this is just another case of both sides assuming whatever position is convenient for them.

          Or are you claiming you’d be out in full force with deportation picket signs if the legal framework went in that direction or even that you’re right at this moment working feverishly to hold local and state governments accountable for openly flouting federal agents and laws in favor of vicious criminals?

          1. Theres moral law and then theres legal framework

            In other words, there’s your personal BS and then there’s the actual law. Shove off with that – you’re no MLK.

            No matter how much you hate the left, if you’re willing to burn down the rules to get at them, you’re a pretty awful American.

            1. Says the guy who supports illegals and their Democrat protectors who routinely and openly burn down the rules.

              You people are such disgusting hypocrites.

              1. No one in this case disputed what the rules are. You just don’t care about them.

                1. There actually was a dispute, why it was raised to the next court. Dishonest oozes from you.

                  Please, tell us again your views on judges stating Trump cant undo the ACA executive order again.

                  1. No one disputes the BIA broke the rules, Jesse.

                    Judges doing judicial review on Trump’s governmental actions are following the rules. Disputing that judges should do that puts you in the realm of nullification.

                    Your rage is blinding you to some pretty elementary distinctions here.

            2. I’m not here to take a position on this specific case I’m here to show the hypocrisy. Have you shown any more concern for the ‘rule of law’ in your actions? Would you be here showing your full support for deportation if things were reversed? Answer honestly.

              1. He would not. He has been dishonest for a decade. Failing as a physicist broke his logic.

                1. You continue to be one of the smallest men on here.

              2. What actions? Heck, which words of mine? Be specific.

                Because I love procedure. It was my specialty in law school, and it’s a good amount of my job now.

      2. Reading the decision in this post where does it say he is an illegal immigrant? Being a citizen of Mexico doesn’t mean he came here illegally.

        1. To the right it does.

      3. It’s always fascinating to see “rule of law” and “law and order” folks focus on two narrow subsets of laws: immigration and criminal offenses. And not all criminal offenses, mind you, just certain ones. When doing so it’s as if they are completely unaware that the law as a whole is broader than that. Of course they are aware, they’re just engaged in the principle that there should be people they like whom the law protects but does not bind, and others they don’t like who the law binds but does not protect.

    2. I have never once seen you call out activist judges on your side sarcastro. Yet you feel free to call out others. Dishonesty is your bread and butter. You literally have judges flaunting various gun precedence. District courts throwing up national injunctions for no actual legal construction. Yet you have ire here. You’re just plain dishonest.

      1. Activist judges? That’s not what is being discussed here, Jesse.

        It’s one thing to think a judge is wrong. It’s quite another to advocate just ignoring them because you do.

    3. But openly ignoring immigration law is okay, right?

      1. Not what’s happening here.

        1. Yes it is. The seventh circuit clearly specified the law of the case, which the government definitionally agreed with since it didn’t seek an appeal, but then the BIA ignored it.

  10. Yo….that judge sounds pissed off.

    One thing I learned early in life: Do not, do not, do not screw around with a judge. Ever.

  11. In Wisconsin the Election Commission is ignoring the plain letter of the law and a court order in refusing to deactivate 200,000 voters who have moved out of State, declaring that while the law states 30 days, they decided they need two years to deactivate.

    The Executive is in open defiance of the Legislative and Judicial branches.

    We are witnessing the beginning of the end of this country. The Lefr has become utterly lawless and are a danger, an extreme danger to our way of life.

    1. I assume either unreason or Volokh will eventually get into this.

      I make bad assumptions a lot, though….

    2. “ignoring … a court order” is factually wrong. The WEC followed proper procedure, appealed, and the trial court’s order is stayed by order of an appellate court.

      Currently on appeal to the WI S.Ct. Hold yer horses. https://apnews.com/a777f090144e4ab49dea76382f21cfc0

      It’s not a good look when you have to lie to make such a histrionic post.

  12. The left is completely lawless in its zeal to replace Americans with illiterate third worlders who will vote for them.

    Birthright citizenship is exactly why conservatives want control over our border. But if this criminal savage is ultimately allowed to stay, and he produces a child on U.S. soil, the same leftists will be shrieking “He’s a U.S. citizen, just as American as you and me! How dare you not want to treat him as one of your countrymen!”

  13. So what was the BIA thinking? As the decision says, they’re all lawyers. Are they incompetent lawyers who really don’t understand how the system works? Did they knowingly defy a court order because they thought nobody would notice? What’s going on here?

    1. Actually feel a little bit sorry for them. The person who appointed them to serve on the BIA orders them to defy a federal court. It’s a bad position to be in.

      Of course they could have satisfied both anti-immigrant inclinations and the circuit court by just ruling against the guy on his case specifically. Don’t know what Barr is trying to achieve by ordering defiance on a more general legal issue.

  14. 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.”

    The court explicitly gave the Board authority to decide the issue, then got upset when the Board decided the issue in a manner the court didn’t like.

    I fail to see the problem here.

    1. They gave the Board the authority to rule on the issue based on the discretion of the AG. It did not say they could assert that as a matter of law there was no jurisdiction to exercise any discretion because that is the exact question the court ruled on and reversed.

  15. I don’t understand the Court of Appeals’ decision here. Sure, an ALJ is empowered to make Discretionary decisions on the AJ’s behalf. But how in the world does that grant of empowerment somehow disempower the AJ from making his own discretionary decisions if he wants to.

    Suppose you are in the hospital, in a coma. You’ve delegated to someone to make certain decisions. You wake up. Is Judge Easterbrook really going to say “sorry, you delegated your medical decisions to someone else, and now that you’ve done that, they’re not yours to make any more”?

    It seems to me that regulatory delegation of discretionary decisions vested by statute in an officer lets the officer review the delegated decision and make one himself if he wants. It is, by statute, his decision to make.

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