The 7th U.S. Circuit Court of Appeals at Chicago issued a unanimous panel decision chastising the Board of Immigration Appeals for defying its remand order, stating “We have never before encountered defiance of a remand order, and we hope never to see it again.” The court vacated the BIA’s decision and ruled in favor of Jorge Baez-Sanchez, a Mexican citizen seeking a U visa. The decision allows Baez-Sanchez to apply for the visa.
What changed
In a 2017 opinion, the 7th Circuit ruled the Board of Immigration Appeals had erred, holding that immigration judges can exercise the same powers as the attorney general absent a regulation to the contrary. The 7th Circuit then remanded Baez-Sanchez’s case to the Board of Immigration Appeals with instructions for it to consider whether some statute, regulation or reorganization plan transferred the waiver power to the secretary of Homeland Security, or whether the waiver is available only to aliens applying outside the United States.
Instead of addressing the issues the court specified, the Board of Immigration Appeals wrote that the 7th Circuit’s decision is incorrect and 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 7th Circuit said its remand was “met by obduracy,” and it would not give the board “a free pass for its effrontery” by remanding the case again. Judge Frank Easterbrook wrote the unanimous panel opinion.
Why it matters
If you are appealing a BIA decision to the 7th Circuit, this case demonstrates that federal courts will enforce remand orders directly. When the BIA refuses to follow instructions on remand—instead relitigating the legal issues the appellate court has already decided—the 7th Circuit is willing to bypass a second remand and rule on the merits itself. This shifts leverage in appellate practice: the BIA cannot simply ignore a remand order and expect another bite at the apple.
The underlying issue also matters for U visa practice. Baez-Sanchez was subject to deportation because of a criminal conviction for aggravated battery of a police officer, but an immigration judge granted the waiver. On appeal, the Board of Immigration Appeals ruled that immigration judges don’t have the power to waive inadmissibility, and only the attorney general can make such determinations. The 7th Circuit’s final ruling—by vacating and entering judgment—establishes that immigration judges in that circuit can grant inadmissibility waivers in this context.
Way forward
- If you have a 7th Circuit remand pending before the BIA: Request oral argument and make clear at briefing that the BIA must address the specific issues remanded and cannot relitigate the threshold legal question the court has already decided.
- If the BIA again defies the remand: File an immediate motion in the 7th Circuit requesting enforcement, citing this decision as evidence the court will not tolerate non-compliance and may bypass remand.
- For U visa waivers in the 7th Circuit: This decision supports the argument that immigration judges possess statutory waiver authority absent explicit statutory or regulatory prohibition.
- Document the remand order carefully: Quote the specific instructions in your briefing to establish what the 7th Circuit actually ordered and what the BIA is deviating from.
Disclaimer
This article is prepared for educational purposes and does not constitute legal advice. Fola Editorial is not a law firm and cannot advise you on immigration matters. Please consult a licensed immigration attorney or accredited representative for guidance on your case. Policy and precedent can change without notice; always verify information against the primary source and current authority before relying on it in practice.