Jorge Baez-Sanchez v. Jefferson B. Sessions III

In the United States Court of Appeals For the Seventh Circuit ____________________ No. 16‐3784 JORGE BAEZ‐SANCHEZ, Petitioner, v. JEFFERSON B. SESSIONS III, Attorney General of the United States, Respondent. ____________________ Petition for Review of a Decision of the Board of Immigration Appeals. No. A206 017 181. ____________________ ARGUED SEPTEMBER 6, 2017 — DECIDED OCTOBER 6, 2017 ____________________ Before BAUER, EASTERBROOK, and HAMILTON, Circuit Judges. EASTERBROOK, Circuit Judge. This proceeding begins where L.D.G. v. Holder, 744 F.3d 1022 (7th Cir. 2014), ends. We held in LDG that the Attorney General has authority un‐ der 8 U.S.C. §1182(d)(3)(A)(ii) to waive an alien’s inadmissi‐ bility—and thus to halt removal temporarily—while the al‐ 2 No. 16‐3784 ien requests a U visa from the Department of Homeland Se‐ curity. After Jorge Baez‐Sanchez requested that relief from an immigration judge, however, the Board of Immigration Ap‐ peals held that IJs lack authority to grant such requests. LDG addressed the question whether the Attorney Gen‐ eral has the authority to waive the inadmissibility of an alien seeking a U visa. We assumed that, in removal proceedings, IJs may exercise all of the Attorney General’s discretionary powers over immigration. The panel did not justify that as‐ sumption, because the parties had not doubted its correct‐ ness. But after LDG the Board concluded that the assumption is mistaken. In re Khan, 26 I&N Dec. 797 (2016), holds that IJs have only such powers as have been delegated and that the power to waive an alien’s inadmissibility during proceedings seeking U visas is not among them. The Third Circuit has agreed with that conclusion. Sunday v. Attorney General, 832 F.3d 211 (3d Cir. 2016). We must decide in this case whether to follow Sunday and Khan. Delegation from the Attorney General to immigration judges is a matter of regulation, and arguably pertinent reg‐ ulations are scattered through Title 8 of the Code of Federal Regulations. The BIA in Khan observed, correctly, that the panel in LDG had not mentioned 8 C.F.R. §§ 235.2(d), 1235.2(d), which omit any delegation to IJs of the power to waive an alien’s admissibility. And that’s true, for those regu‐ lations concern the powers of District Directors rather than the powers of IJs. The principal regulation that does cover IJs’ authority is 8 C.F.R. §1003.10, which provides in part: (a) Appointment. The immigration judges are attorneys whom the Attorney General appoints as administrative judges within the Office of the Chief Immigration Judge to conduct specified classes of proceedings, including hearings under section 240 of No. 16‐3784 3 the [Immigration and Nationality] Act. Immigration judges shall act as the Attorney General’s delegates in the cases that come be‐ fore them. (b) Powers and duties. In conducting hearings under section 240 of the Act and such other proceedings the Attorney General may assign to them, immigration judges shall exercise the powers and duties delegated to them by the Act and by the Attorney General through regulation. In deciding the individual cases be‐ fore them, and subject to the ...

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