Written by: Stephen Manning

As much as it pains us to write this, Matter of Diaz and Lopez is a correct statement of Brand X law. In the immigration field, there are three and only three parties that can exercise power under Brand X to declare interpretations in derogation of on point circuit precedent: the Attorney General, the Secretary of Homeland Security, and the Board of Immigration Appeals. That’s it. No immigration judges, no district directors, no regional directors, no AAO, not even the head honchos at CIS in Washington, D.C. (unless acting under 8 C.F.R. 103.3(c)). Let’s put an asterisk by BALCA – it is a bit hazy if they have law-making power (we’ll explain later or you can read this AILA Amicus brief).

Right now, it is true (in our opinion) that every administrative adjudicator within the Ninth Circuit must follow Matter of Diaz and Lopez – which mandates that Matter of Briones, not Acosta v. Gonzales, 439 F.3d 550 (CA9 2006), is the law. Accordingly, individuals who are caught up in the 212(a)(9)(C) mess will have their adjustment applications denied by administrative adjudicators and that is a correct result under administrative principles. (Note: Padilla-Caldera v. Gonzales, 453 F.3d 1237 (CA10 2006) still controls in the Tenth Circuit and every administrative adjudicator therein ought to follow Padilla, not Briones. We know that is not happening – but unlawful conduct by the immigration agencies doesn’t exactly shock us.)

Make no mistake: we think Briones, and Diaz & Lopez are substantively wrong. However, in the Ninth Circuit, the substantive fight is now at the Circuit Court level. If you have a case raising an Acosta question before the Ninth Circuit, consider dropping AILA Amicus a line – we are identifying cases and may be able to help.

There are still several statutory and fairness questions that are not controlled by Briones, Diaz & Lopez, or even Acosta. First, if Acosta is a Chevron step-one decision, then Diaz & Lopez will be vacated and possibly Briones. Second, if Briones represents an unreasonable Chevron step-two interpretation of the statute, then it will also be vacated. Third, there are unresolved retroactivity questions: for individuals who filed for adjustment in reliance on the Acosta decision – shouldn’t they be entitled to an adjudication under that interpretation? This is a complex question and involves some funky Supreme Court and Ninth Circuit precedent such as Chevron Oil Co. v. Hudson, 404 U.S. 97 (1971) and George v. Camacho, 119 F.3d 1391 (CA9 1997) (en banc). To preserve these issues, they might need to be raised before the agency and certainly before the Ninth Circuit. Some of the retroactivity questions will be clarified (we hope, favorably) in the Duran-Gonzales litigation (updates here).

We continue to ponder other statutory arguments and will post again soon on this point. Please contact an AILA Amicus circuit monitor about your case or your statutory or fairness arguments.