Baez-Sanchez v. Sessions
872 F.3d 854
| 7th Cir. | 2017Background
- This case follows L.D.G. v. Holder, 744 F.3d 1022 (7th Cir. 2014), which held the Attorney General may waive an alien’s inadmissibility under 8 U.S.C. § 1182(d)(3)(A)(ii) while the alien seeks a U visa.
- Jorge Baez-Sanchez requested such a waiver from an immigration judge (IJ) during removal proceedings; the Board of Immigration Appeals (BIA) concluded IJs lack authority to grant that relief.
- The Seventh Circuit panel in L.D.G. had assumed IJs could exercise the Attorney General’s discretionary immigration powers, but the BIA later rejected that delegation view in In re Khan.
- The Attorney General (in this appeal) argues either that (1) the AG never had authority to grant these waivers because those powers transferred to DHS, or (2) if the AG has the power, it applies only to aliens outside the U.S. seeking admissibility waivers.
- The court analyzed 8 C.F.R. § 1003.10(a) (stating IJs act as the Attorney General’s delegates in cases before them) and concluded that it supports the view that IJs may exercise the AG’s delegated powers unless another regulation restricts that delegation.
- The BIA did not rely on the statutory transfer arguments (6 U.S.C. §§ 271(b), 557) or resolve the outside-vs.-inside-the-U.S. question; under SEC v. Chenery, the court declined to uphold the BIA on grounds the BIA never adopted and remanded for further agency consideration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether IJs may exercise the Attorney General’s discretionary power to waive inadmissibility for U-visa applicants during removal proceedings | IJs may exercise all AG discretionary powers in cases before them (relying on 8 C.F.R. § 1003.10(a) and LDG) | BIA/AG: IJs lack delegated authority to grant such waivers (per In re Khan and related regs) | Court holds § 1003.10(a) supports that IJs act as the AG’s delegates and may exercise AG powers unless another regulation limits that delegation; remands to BIA. |
| Whether the AG lacks authority because immigration powers transferred to DHS (6 U.S.C. §§ 271(b), 557) | Baez-Sanchez assumes AG retains authority (per LDG) | AG: Statutory reorganization transferred discretionary immigration powers to the DHS Secretary | Court rejects addressing the transfer question because BIA did not rely on those statutes; subject left open for remand. |
| Whether waivers under § 1182(d)(3)(A)(ii) can be granted only to aliens outside the U.S. | Baez-Sanchez: Waivers can be applied in removal proceedings to aliens inside the U.S. | AG/BIA suggested waivers might be limited to pre-entry applicants | Court declines to resolve this; BIA did not base decision on that ground and may address it on remand. |
| Whether Chevron/Auer deference decide statutory/regulatory ambiguities now | Baez-Sanchez relies on existing precedents supporting IJ authority | AG urges deference to agency interpretation (BIA/DHS views) | Court finds Chevron/Auer issues premature until BIA addresses the core delegation and statutory-authority questions on remand. |
Key Cases Cited
- L.D.G. v. Holder, 744 F.3d 1022 (7th Cir. 2014) (held AG may waive inadmissibility under § 1182(d)(3)(A)(ii) while alien seeks U visa)
- Sunday v. Attorney General, 882 F.3d 211 (3d Cir. 2016) (concluded IJs lack delegation to grant such waivers)
- SEC v. Chenery Corp., 318 U.S. 80 (1943) (agency decision must rest on the agency’s stated reasoning)
- Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984) (framework for judicial review of agency statutory interpretations)
- Auer v. Robbins, 519 U.S. 452 (1997) (deference to agency interpretations of its own regulations)