The immigration thread: American Melting Pot or Get off my Lawn

[bearrock]

*sigh*....  News like the above posts are what still keeps me in the any functioning adult camp....

 

If anyone wants to look at how bad it has become, take a gander at Judge Easterbrook's opinion out of the 7th circuit (might want to double check that you have no risk factors for an aneurysm or something) 

 

https://abovethelaw.com/2020/01/judge-easterbrook-goes-ballistic-on-immigration-judges-ignoring-express-order/

 

Quote from the opinion

 

Quote

What happened next beggars belief. 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…. The Board did not rely on any statute, regulation, or reorganization plan transferring the waiver power under §1182(d)(3)(A)(ii) from the Attorney General to the Secretary.

....
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 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.

 

And lest you think Easterbrook is some liberal activist judge, he's a Reagan appointee and very much a conservative textualist.  Trump admin is not even trying to keep up an appearance anymore.

Edited February 23, 2020 by bearrock

[twa]

I think Easterbrook is wrong.

If the power to grant a waiver is derived by law from the AG then if someone mistakenly grants a waiver(using that authority) then those in superior position are well within the law to correct it at the direction of the AG.

 

just as a Easterbrook mistake can be corrected by those in a superior court.

[bearrock]

13 minutes ago, twa said:

I think Easterbrook is wrong.

If the power to grant a waiver is derived by law from the AG then if someone mistakenly grants a waiver(using that authority) then those in superior position are well within the law to correct it at the direction of the AG.

 

just as a Easterbrook mistake can be corrected by those in a superior court.

 

You're attacking the very principle of judicial review.  Courts are final arbiters of legal questions, not the executive.  Only entity in the United States with authority to overturn a remand decision of the 7th Circuit is the US Supreme Court.  Certainly not Board of Immigration Appeals or the Attorney General.  Even if the decision was plainly wrong and everyone in the executive branch agreed it was wrong, it is of no consequence unless a higher court overturns it or a new law is enacted.  To view otherwise rips apart the fundamental tenet of the US legal system.

[twa]

if the waiver is withdrawn there is nothing to arbiter.

 

the law binds judges as well.

 

Easterbrook is a good judge, but not a perfect one.

https://www.injusticewatch.org/projects/2017/pattern-of-misstated-facts-found-in-probe-of-renowned-federal-judges-opinions/

[bearrock]

6 minutes ago, twa said:

if the waiver is withdrawn there is nothing to arbiter.

 

the law binds judges as well.

 

Easterbrook is a good judge, but not a perfect one.

https://www.injusticewatch.org/projects/2017/pattern-of-misstated-facts-found-in-probe-of-renowned-federal-judges-opinions/

 

You're not getting what the central issue is.  Immigration judge granted the waiver.  BIA said immigration judge didn't have that power.  7th Circuit ruled that yes, immigration judge does have that power.  BIA, on remand, said Attorney General thinks the 7th Circuit is wrong so we'll just ignore the court's ruling.  Nothing could be more fundamental to the US legal system than this. 

 

If a court orders the release of a criminal defendant, it is not up to the executive branch to evaluate whether that release should happen.  If the court orders that a property be levied and sold, it is not the province of the sheriff's department to decide whether that should happen.  Executive branch must obey the court's directive in case decisions or the entire system falls apart.  It doesn't matter how wrong the court is.  If the court is truly wrong, the answer is not the executive branch taking matters into their own hands, it is via appeal or legislative change.

[twa]

the power the immigration judge used was the AG's power, why would the AG  not be able to reverse a delegates decision?

 

 

[bearrock]

3 minutes ago, twa said:

the power the immigration judge used was the AG's power, why would the AG  not be able to reverse a delegates decision?

 

 

 

AG could've reversed the decision, which the 7th Circuit specifically pointed out he could.  The issue is not whether or not the waiver ultimately got granted.  BIA's argument on the initial appeal was that AG has no power to grant waiver of inadmissibility in a U case.  7th circuit held otherwise and remanded with instructions to consider the application consistent with the court's ruling.  BIA said it disagreed with the court's ruling on the issue they already ruled on and denied the visa, not based on exercise of discretion regarding the waiver.

[twa]

If the AG indicated to the BIA(another group under the DOJ authority) he did not have the power then the Immigration judge did not have the power derived from the AG.

 

the judge may not like it but he doesn't run the DOJ

[bearrock]

Just now, twa said:

If the AG indicated to the BIA(another group under the DOJ authority) he did not have the power then the Immigration judge did not have the power derived from the AG.

 

the judge may not like it but he doesn't run the DOJ

 

7th circuit disagrees with the AG based on existing statute and regulation.  AG may not like it, but he doesn't get to overrule a court decision.  

[twa]

1 minute ago, bearrock said:

 

7th circuit disagrees with the AG based on existing statute and regulation.  AG may not like it, but he doesn't get to overrule a court decision.  

 

overrule no, but it can be ignored at times by asserting administrative opinion.....ask Obama.

 

 

 

 

[bearrock]

7 minutes ago, twa said:

 

overrule no, but it can be ignored at times by asserting administrative opinion.....ask Obama.

 

 

 

 

 

In this context, ignore vs overrule is semantics.

 

Give me your best shot at what you think Obama did that comes closest to this. 

[twa]

6 minutes ago, bearrock said:

 

In this context, ignore vs overrule is semantics.

 

Give me your best shot at what you think Obama did that comes closest to this. 

 

best?...there is no best

 

https://www.dailysignal.com/2015/05/12/obama-administration-admits-it-violated-judges-order-to-halt-implementation-of-immigration-plan/

 

https://www.mrc.org/biasalerts/obama-administration-found-contempt-court-media-silent

 

https://www.theguardian.com/world/2015/jun/09/obama-fisa-court-surveillance-phone-records

 

 

[bearrock]

50 minutes ago, twa said:

 

best?...there is no best

 

https://www.dailysignal.com/2015/05/12/obama-administration-admits-it-violated-judges-order-to-halt-implementation-of-immigration-plan/

 

Note how the government never took the position that they could disobey the court's order.

 

Quote

https://www.mrc.org/biasalerts/obama-administration-found-contempt-court-media-silent

 

Attempt to reimplement an agency decision after a ruling of arbitrary and capricious decision happens all the time.  Where a judge, as Feldman did here, strikes down the the agency rule because he finds that the agency did not properly consider the evidence and circumstances, agencies often try to reimplement it with additional steps to shore up the consideration argument.  That's not saying they can ignore the court's ruling (the opposite, in fact)

 

Quote

https://www.theguardian.com/world/2015/jun/09/obama-fisa-court-surveillance-phone-records

 

So, they asked FISA court, part of the judicial branch, to reach a different decision than the second circuit.  What principle of judicial review is violated here?  

[twa]

6 minutes ago, bearrock said:

 

Note how the government never took the position that they could disobey the court's order.

 

 

 

They took the position the order was invalidated.

You will note waivers are at the AG's discretion....not the courts.

[bearrock]

18 minutes ago, twa said:

 

They took the position the order was invalidated.

 

 

When did they do this?

 

Quote

You will note waivers are at the AG's discretion....not the courts.

 

I never disagreed with this.  Nor did the 7th circuit.  It was the BIA, even after being told otherwise by the 7th circuit, that took the position that the discretion belongs to Secretary of DHS, not the AG.

[Renegade7]

 

[twa]

9 hours ago, bearrock said:

 

 

 

 

I never disagreed with this.  Nor did the 7th circuit.

 

obviously Easterbrook did.....since he is trying to tell the AG what his power is that is delegated.

if the person with the ultimate choice says there is no valid waiver then there is no waiver

[bearrock]

6 minutes ago, twa said:

 

obviously Easterbrook did.....since he is trying to tell the AG what his power is that is delegated.

if the person with the ultimate choice says there is no valid waiver then there is no waiver

 

Twa, you seem to be misunderstanding the gist of the issue.  BIA said the waiver is not within the AG's discretion to give because it got delegated to the secretary of DHS (therefore the immigration judge could not either).  7th circuit disagreed and said AG does have the power to grant the waiver.  It even said on remand, the BIA (as the AG's delegate) may choose to exercise that discretion however it sees fit (it also wouldn't foreclose AG directly deciding, though it would be very unusual and entirely unnecessary).  Then on remand BIA said AG disagree with the 7th circuit and still thinks discretion over the waiver belongs to DHS secretary, not the AG, thus we'll go with the AG's take on the issue.

 

You're stuck on the thought that AG can choose not to grant the waiver.  No one disputes it.  If on remand, the BIA (or Barr himself stepping in, as unusual as that may be) decided that the case doesn't meet the criteria for a waiver, that would've been the end.  But instead, they chose to go back to the point already decided by the 7th circuit - i.e. that the AG does not have the power to grant the waiver even he wanted to (practitioners have a guess why they chose this particular hill to die on instead of taking the easy path if they really wanted to just deny the application but obviously it's still speculation at this point).

[Cooked Crack]

 

 

[twa]

10 hours ago, bearrock said:

 

Twa, you seem to be misunderstanding the gist of the issue.

 

Not really, the court asserts the immigration judge is empowered to grant the waiver.

 

The AG obviously does not think so in this case and has expressed that opinion to the BIA.(which reviews the immigration judge's actions)

 

the immigration judge's authority(if even proper) derives from the AG who's opinion controls both the judge and BIA actions.

 

Is the AG's opinion his choice or something that can be mandated by the federal court?

 

the court and others may not like the use of declared precedents in immigration courts, but that is not for them to decide either .

 

 

[bearrock]

33 minutes ago, twa said:

 

Not really, the court asserts the immigration judge is empowered to grant the waiver.

 

The AG obviously does not think so in this case and has expressed that opinion to the BIA.(which reviews the immigration judge's actions)

 

the immigration judge's authority(if even proper) derives from the AG who's opinion controls both the judge and BIA actions.

 

Is the AG's opinion his choice or something that can be mandated by the federal court?

 

the court and others may not like the use of declared precedents in immigration courts, but that is not for them to decide either .

 

 

 

It's a simple distinction.  Should the waiver be granted and who's the one that gets to decide are two different questions.  BIA said AG is not the person.  7th circuit said he is.  Whether he grants it or not, that's up to him, but if the 7th circuit says jurisdiction over the waiver lies with the AG, it lies with the AG.  AG can't say "No, I disagree.  I have no jurisdiction."  Imagine if the Senate said we won't hold an impeachment trial because the jurisdiction to conduct an impeachment trial lies with the public via election.  SCOTUS says no, under the constitution, the Senate is the appropriate place for an impeachment trial.  That has nothing to do with what the Senate decides.  But Senate can't (without creating a constitutional crisis) say, no we disagree, we are not the place for impeachment trials

[twa]

4 minutes ago, bearrock said:

  Whether he grants it or not, that's up to him, but if the 7th circuit says jurisdiction over the waiver lies with the AG, it lies with the AG.  AG can't say "No, I disagree.  I have no jurisdiction." 

 

he most certainly can defer to BIA precedent that the waiver will not be granted in this circumstance.......the law does not demand a yes or no.....nor can Easterbrook.

the AG is not a jurist in this matter, he is a executive not bound by a law in this matter.....rather his choice is empowered by law.

 

 

[bearrock]

10 minutes ago, twa said:

he most certainly can defer to BIA precedent that the waiver will not be granted in this circumstance.......

 

 

Yes.  Except that's not what he did.

 

Quote

the law does not demand a yes or no.....nor can Easterbrook.

 

 

Yes it does.  Even the AG's position was not that law doesn't demand a yes or no.  AG was saying that the law doesn't demand it from him, it demands it from the secretary of the DHS.

 

Quote

the AG is not a jurist in this matter, he is a executive not bound by a law in this matter.....rather his choice is empowered by law.

 

So judicial review doesn't exist?  Why are the courts there if executive branch is not bound to follow the court's orders?  Any decision of the courts is merely advisory for the executive branch?  I guess it's good news for the Trump admin.  They can just go around imprisoning abortion providers because Casey was just advisory right?

[twa]

there need be no judicial review of a MAY choice.....he can defer to any damn thing or person or theory to not grant it.....and it is beyond court review

 

it is not a shall issue a judgement, his not granting it is a action....as his guidance note to the BIA

 

 

[bearrock]

20 minutes ago, twa said:

there need be no judicial review of a MAY choice.....he can defer to any damn thing or person or theory to not grant it.....and it is beyond court review

 

it is not a shall issue a judgement, his not granting it is a action....as his guidance note to the BIA

 

 

 

Question of who has jurisdiction over the grant of waiver =/= question of whether the waiver should be granted.