On January 23, 2020, the Federal Court of Appeals for the Seventh Circuit issued a scathing decision that has garnered much attention. (Baez-Sanchez v. Barr, No. 19-1642 (7th Cir. 2020). It was not the merits of the underlying immigration case that led to the court’s  words of reprimand and warning, but rather the Board’s “obdurate” refusal to implement the circuit court’s remand decision.

The court’s firm admonishments reflect its frustration with being deliberately defied by the Board of Immigration Appeals (BIA).

The Baez-Sanchez case started with a request to the Department of Homeland Security for a U visa to allow him to remain in the U.S. due to having been a crime victim. Baez-Sanchez’ attorneys petitioned the immigration judge in a hearing to grant a waiver of inadmissibility.  The immigration judge (acting as a representative of the Attorney General) acts under the authority of the Department of Justice and in this case the judge did grant the waiver. The Board of Immigration Appeals sent the case back asking the judge to consider another issue and the immigration judge did so and then reaffirmed the decision.

The Board then stated that the judge did not have the power to provide the waiver in the first place so the case came before the appellate court. The federal appellate court remanded it back to the Board to consider two questions.  The Board’s response upon this remand is what led to the Seventh Circuit court’s remarks of note:

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.  … it should not be necessary to remind the Board, all of whose members are lawyers, 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….  Once we reached a conclusion, both the Constitution and the statue required the Board to implement it.

The court’s decision highlights a trend that is of growing concern to immigration practitioners, which is the Department of Homeland Security’s failure to follow established law and precedent. We see this most notably in the adjudication of applications for immigration benefits wherein USCIS increasingly has been demanding excessive proof of eligibility that goes beyond the standard of proof required by precedent. It is well established that in visa petition proceedings, the petitioner bears the burden of proving eligibility by a “preponderance of the evidence.” Thus, even if the director has some doubt as to the truth, if the petitioner submits relevant, probative, and credible evidence that leads the director to believe that the claim is “probably true” or “more likely than not,” the applicant or petitioner has satisfied the standard of proof. See U.S. v. Cardozo-Fonseca, 480 U.S. 421 (1987) (defining “more likely than not” as a greater than 50 percent probability of something occurring). If the director can articulate a material doubt, it is appropriate for the director to request additional evidence. See, e.g., Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010), sustaining the applicant’s appeal of his N-400 denial where he provided “relevant, probative and credible” evidence that he satisfied the statutory requirements for naturalization where his employer’s SEC filing and the company support letter he submitted were “relevant” and “uncontroverted by other evidence.”

In one recent case filed by our firm on behalf of a billion-dollar multinational publicly traded corporation in support of its petition to transfer one of its employees to the U.S. on an L-1 visa, we submitted a copy of the company’s most recent Annual Report filed with the Securities and Exchange Commission (SEC). Given the stringent enforcement regime of the SEC for those who make false or misleading claims in their filings, any statements made in an SEC filing are by definition “more likely than not” true and thus meet the preponderance of the evidence standard. However, USCIS sent a request for evidence requesting additional proof that the billion dollar company had not gone out of business since filing its last Annual Report, and sought additional proof that the company was still “doing business.”

In another H-1B petition we submitted for an Engineer, USCIS requested additional evidence that the Engineer was really filling a “specialty occupation,” which is defined as any job that requires a bachelor’s degree in a specific specialty for entry into the occupation. The regulatory definition includes “engineering” as an example of such a specialty.

These are two from among many examples we could have chosen to illustrate the issue, which is USCIS’s de facto imposition of a higher standard of proof than that which has been established by precedent. This is part of a larger trend in which the Department of Homeland Security has departed from established precedent in rendering its decisions. Increasingly, the only meaningful recourse to unfair adjudications is through the federal courts. However, the Seventh Circuit decisions is the first instance of which we are aware, in which any branch of DHS has openly defied a direct court order.

Our Immigration Law Practice Group includes immigration attorneys that work across New York state in our Albany, Buffalo, Ithaca, Long Island, New York City, Rochester and Syracuse offices. Our immigration lawyers focus on strategies – including immigrant visas for permanent U.S. resident status and temporary visas for foreign nationals – to ensure that employers are able to hire, transfer, and retain the brightest and best non-U.S. talent.