A Tale of Two Judges

On January 20, Mohammed Hossein brought an action and a petition for a writ habeas corpus in the District Court in Boston seeking relief from imminent removal. He was a young Iranian national studying for a bachelor’s degree at Northeastern University. When he arrived at Logan Airport, the CBP officer revoked his student visa and issued an expedited removal order. The same day, the magistrate judge, acting on the habeas petition, issued a temporary restraining order and an order requiring CBP to bring Hossein to court the next day. This, by the way, is extremely orthodox in the world of habeas corpus, where the writ requires the custodian to have the prisoner in court, although it does not seem from the docket that the magistrate judge actually issued the writ. Anyway, on the day of the hearing, the government reported that Hossein had been removed. News reports say that he was removed after the order had issued, though the timing of the magistrate judge’s order is unclear from the publicly available docket and it is unclear when the defendants (the government and certain officials) were put on notice of the order. Judge Stearns dismissed the case as moot, reportedly saying, “I don’t think they’re going to listen to me.”

Jorge Baez-Sanchez was a Mexican national who had been convicted for aggravated battery of a police officer and, as a result, was inadmissible and subject to removal as a criminal alien. He applied toe the Department of Homeland Security for a special visa available to victims of crime, and he asked the immigration judge to waive his inadmissibility, which would allow DHS to rule favorably on his visa application. The immigration judge granted the waiver, and the Board of Immigration Appeals remanded with instructions to consider additional issues. The immigration judge granted the waiver again. The BIA then ruled that only the Attorney General, personally, had the power to waive inadmissibility unless the Attorney General had reserved that power in a statute, regulation, or reorganization plan. But on appeal, the Seventh Circuit disagreed, holding that the immigration judge did indeed have the delegated power to waive inadmissibility. The court remanded for consideration of whether a statute, regulation, or reorganization plan had transferred the Attorney General’s power to the Secretary of Homeland Security.

“What happened next,” wrote Judge Easterbrook, “beggars belief.” The Attorney General issued a letter that, in a footnote, asserted that the court’s decision was wrong and that the Secretary had the sole power to waive inadmissibility. The BIA, relying on that letter and not on a statute, regulation, or reorganization plan, “refused to implement our decision.” Baez-Sanchez appealed again. Here is what Judge Easterbrook had to say:

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. 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 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, but we held that the regulation is unambiguous. An agency is entitled to reinterpret an ambiguous regulation, 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. 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.

(citations omitted).

Now I don’t want to give Judge Stearns too hard of a time, because the facts of the case before him, and in particular the critical facts about notice of the TRO, are not clear from the news reports I’ve read. But I think what these two cases demonstrate is that judges’ reactions to Executive Branch intransigence really matter. Unless it was clear that the government had had no notice of the TRO, I think Judge Stearns should have rigorously examined the facts and held the government to account. I think Judge Easterbrook’s tone was exactly right. When the rule of law is at stake, judges need to push back hard on executive overreach. I feel confident that the BIA will think twice before disregarding a mandate of the Seventh Circuit again. If you’re a judge, the judicial power of the United States is vested in you. Buck up. “I don’t think they’ll listen to me” doesn’t cut it.

4 thoughts on “A Tale of Two Judges”

  1. When I read about Judge Stearns’ ruling I couldn’t believe it. As you say, it’s unclear when the government learned of the order, and that fact muddies the case up and thus perhaps also effectively muddies up Judge Stearns’ degree of dereliction. But still–what an abject disgrace.

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