Judge Frank Easterbrook, of the U.S. Court of Appeals for the Seventh Circuit. Photo: Diego M. Radzinschi / ALM 

A federal appeals court had scathing words for the Justice Department after it ignored a remand order and called the panel's original order incorrect.

The U.S. Court of Appeals for the Seventh Circuit had remanded the underlying immigration case to the Bureau of Immigration Appeals, with instructions to address two possibilities the Justice Department raised in its defense when it claimed an immigration judge abused her discretion in granting a certain type of visa for otherwise-inadmissible immigrants.

That case involved immigrant Jorge Baez-Sanchez, who was seeking a "U visa" for "inadmissible aliens" who have been the victim of a crime in the United States. Baez-Sanchez was not allowed into the country because of a prior conviction.

"What happened next beggars belief," wrote Judge Frank Easterbrook of the U.S. Court of Appeals for the Seventh Circuit for the panel. "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 we specified, the Board 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 panel, which included Judges William Bauer and David Hamilton of the U.S. Court of Appeals for the Seventh Circuit, said the Justice Department "flatly refused" to implement the original order.

"We have never before encountered defiance of a remand order, and we hope never to see it again," Easterbrook wrote. "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. 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 panel ultimately rejected the Justice Department's request to remand the case again, saying it would only give the immigration board another chance to write an opinion on why the Seventh Circuit erred. "That's water under the bridge," Easterbrook wrote.

Instead, the panel turned to what to do with Baez-Sanchez's case, and whether an immigration judge can grant the visa he seeks. The panel ultimately upheld the immigration judge's order granting the visas, and directed the executive branch to honor the decision.

"Another remand would do little beside give the Board a free pass for its effrontery, while delaying the alien's entitlement to a final decision," the panel wrote. "That's not the goal of the remand rule. Baez-Sanchez has waited long enough. We deem all of the legal questions settled."

Read the Seventh Circuit's decision in Baez-Sanchez v. Barr:

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