Barr, Immigration Board Chided by Appeals Court in Visa Case

(Bloomberg) -- U.S. Attorney General William Barr and the Board of Immigration Appeals were berated by a federal appeals court for thwarting its orders and holding up a Mexican citizen’s request to seek a special visa for immigrants who were victims of a crime in the U.S.

Barr and the board rebuffed the Chicago-based appeals court’s decision that immigration judges can waive the objectionable status of certain visa applicants with criminal convictions, a three-judge panel said on Thursday.

The “board flatly refused to implement our decision,” the appeals court said. “We have never before encountered defiance of a remand order, and we hope never to see it again.”

The judges called the board members lucky that the visa applicant didn’t ask the court to hold them in contempt.

Barr has come under fire for increasingly acting as a surrogate for President Donald Trump. Earlier this month, the New York City Bar association asked Congress to investigate whether Barr’s actions are biased.

The Justice Department declined to comment.

The dispute arose from Jorge Baez-Sanchez’s request for a “U Visa.” Sanchez is deemed inadmissible to the U.S. because he has a criminal conviction for aggravated battery on a police officer, according to the appeals court ruling.

He applied for the visa, which would let him stay in the U.S. because he was also a victim of a crime. To get the visa though, he required a waiver of inadmissibility. An immigration judge twice granted the request. The immigration board ruled the judge abused her discretion and said the power to waive inadmissibility belonged to the Attorney General and can’t be exercised by immigration judges.

The appeals court sent the case back with instruction that the board consider two possibilities that the Attorney General raised in defense of the decision.

‘Beggars Belief’

“What happened next beggars belief,” the appeals court said. “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, the board just repeated its earlier claim that the Secretary of Homeland Security alone could issue U visas and should have the sole power to decide inadmissibility, the panel said.

“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,” the court said.

Barr argued the court should send the case back to the immigration board so it can decide whether an immigration judge can rule on an application for a nonimmigrant waiver, according to the appeals court. The panel called the request “bizarre,” since the appeals court already ruled immigration judges have the power.

The case won’t be resent to the board for reconsideration, the appeals court said. That “would do little beside give the board a free pass for its effrontery, while delaying the alien’s entitlement to a final decision.” The court canceled the board’s decision.

To contact the reporter on this story: Malathi Nayak in San Francisco at mnayak21@bloomberg.net

To contact the editors responsible for this story: David Glovin at dglovin@bloomberg.net, Joe Schneider, Peter Blumberg

©2020 Bloomberg L.P.