Delgado v. Holder, the most recent en banc decision of the schizophrenic Ninth Circuit may be one of those event-horizon cases.  Valiantly litigated by AILA member Niels Frenzen, Delgado is notable, of course, for its headline holdings:  what it means to be convicted of a particularly serious crime.  These holdings, which we briefly summarize below, will impact the adjudication of numerous claims for asylum and withholding.

Delgado, a citizen of El Salvador, sought asylum, withholding and withholding under CAT but was deemed ineligible by the IJ. The BIA affirmed because they explained, in an unpublished opinion, that Delgado had been convicted of a particularly serious crime.  It was his third conviction for misdemeanor driving under the influence.

Judge Fisher, writing for 10 of the judges, granted in part and denied in part Mr. Delgado’s petition for review.  There were three case-specific holdings:  (1) the federal circuit courts have jurisdiction to review the BIA’s determinations that any particular individual has been convicted of a particularly serious crime;  (2) a particularly serious crime is not limited to aggravated felonies.  Crimes that are not aggravated felonies, such as driving under the influence, are not statutorily precluded from being designated as particularly serious by the BIA; and, (3) the Attorney General may classify crimes as particularly serious both by case-by-case adjudication and by regulation for asylum purposes.

What makes the case a boundary-marker, though, is the manner in which the Ninth Circuit applies the Chevron doctrine to decisions of the Board of Immigration Appeals.  If its Chevron holding sticks – and there are a lot of uncertainties on this point – then it ought to fundamentally alter the manner in which the federal courts, in this case the Ninth Circuit and the district courts therein, review agency immigration decisions.

Justice Stevens, the author of Chevron, explained recently that “[i]n the 25 years since Chevron was decided, [the Supreme Court] has continued to recognize that courts and agencies play complementary roles in the project of statutory interpretation.” The Chevron doctrine, as conceived of by the Supreme Court and implemented by the lower courts, clarifies how courts and agencies work together to achieve the goals articulated by Congress in legislation. As Justice Stevens is emphatic about pointing out: judicial deference to agencies’ views on statutes they administer was not born in Chevron and the role of the judiciary to say what the law is did not die with it either.

Chevron famously provides a two-step structure for judicial review of agency decision making while preserving the legitimate authority of an agency and, ultimately, Congress. At Chevron step one, a court determines whether Congress’ intent is expressed in the statute’s plain language, and if it is, that intent must be given effect. However, when Congress has explicitly left a gap for the agency to fill, a court must proceed to step two, where the inquiry is whether Congress was silent or used language that is ambiguous. If so, the agency’s interpretation is given controlling weight unless it is unreasonable.

The doctrine is well-known yet, in spite of its heritage, it is not well-understood.  What Chevron meant in the context of the poorly-reasoned flotsam flooding the federal courts in the wake of the BIA procedural reforms (wherein to their shame, the members of the BIA decided that they would no longer do their jobs no matter their oaths of office), the seemingly pristine Chevron doctrine, while simple in statement, proved difficult in application.  What to make of the mess of BIA decisions?  In a series of decisions, culminating in the en banc decision in Marmolejo-Campos v. Holder, the Ninth Circuit resolved what had been an inconsistent approach to the Chevron doctrine on several critical questions.  (The Ninth Circuit is not alone on its confusion and inconsistent approach to Chevron.  Some circuits, such as the First, Fifth, Eighth, and Eleventh continue to wander in the darkness in their view that Chevron acts as a docket-clearing mechanism that permits them to Pontius-Pilate their way to denying case after case without too much thought or guilt.)

In the Ninth Circuit, it is now so that as to form, only published BIA decisions curry Chevron deference.  An unpublished decision relying on a published opinion for dispositive effect will also trigger Chevron as to the contents of the published decision.  Immigration Judge decisions are not Chevron eligible.  Single-member BIA decisions, like unpublished BIA decisions, are not Chevron eligible.

As to content, the BIA decision must interpret its governing statute, such as the Immigration and Nationality Act, to be Chevron eligible.  For example, BIA decisions interpreting criminal law are not reviewed under Chevron.

The Delgado decision highlights a recurring, yet largely side-stepped Chevron question: when reviewing a BIA decision, if the BIA does not actually invoke Chevron in its decision, is its statutory analysis eligible for Chevron deference?  In other words, if the BIA adopts a plain language analysis of the INA and it thereby does not exercise its administrative discretion or expertise to fill a statutory gap or give meaning to any ambiguous terms does Chevron matter at all? Likewise the corollary: if the BIA finds the statute to be clear, but a judicial court finds the statute to be ambiguous, what should the court do?

In an amicus brief, AILA argued that when the BIA engages in a plain language statutory analysis, fills no statutory gaps, or does not particularize ambiguous statutory terms, its decision – published or not – is not eligible for Chevron deference. This is so even if the BIA is mistaken in its analysis and, indeed after judicial construction, a statute is ambiguous. Ambiguity, in the end, will always be a judicial determination.  The principle that – as to content – an administrative agency must actually use its expertise to fill statutory gaps or particularize ambiguous statutory terms before Chevron will apply appears to be well accepted in administrative law outside the immigration context.  But the circuit courts have failed to recognize this principle when applied to BIA decisions.  For example in Garfias-Rodriguez v. Holder, the Ninth Circuit recently cited Chevron and deferred to the BIA’s decision in Matter of Briones, yet in Matter of Briones the BIA merely conducted a plain language analysis of the statute and did not, in fact, invoke its interpretive powers.

In its brief in Delgado, AILA explained that the Supreme Court does not treat BIA decisions any differently citing to Negusie v. Holder.  In that case, the dispute centered on whether coercion or duress is relevant in determining if a noncitizen assisted or otherwise participated in the persecution of others such that he or she would be ineligible for asylum. The BIA in denying the application had concluded that its caselaw did not recognize coercion or duress as a defense to the persecutor bar. The government defended this decision on the basis of Chevron – the BIA was entitled to deference in interpreting the Immigration and Nationality Act. The problem in that defense though, Justice Kennedy pointed out, was that the BIA had not actually “interpreted” anything.  The BIA, erroneously, had concluded that its rulings were compelled by a Supreme Court decision interpreting a different statute. Accordingly, Chevron was inapplicable because the BIA had not used its Chevron delegated power to make law.

Judge Fisher, in his opinion in Delgado, credits the argument and explains at footnote 12 that, true, the BIA would not have been entitled to deference had it only reached a plain language interpretations.  Judge Fisher stated that the BIA, in fact, had found the statute to be ambiguous and thus adopted a Chevron gap-filling interpretation. In cases where the BIA believes a statute is plain, but it is in fact ambiguous, the court will remand for an agency interpretation under Chevron.

And why is this so important that we would characterize Delgado as being a marker?  Well, there are a couple of reasons.  First, it may mark the high-water mark of Chevron.  Certainly, Chevron will retain its importance in defining the relationship between the federal courts and administrative agencies, but courts may no longer reflexively invoke it to clear their dockets and instead will need to do the actual job of judges: judge.  Second, it casts doubt on every circuit court decision that deferred to a plain language BIA analysis.  Third, it specifically indicates that the highly contested BIA decisions in Matter of Briones, Matter of Lemus-Losa, and Matter of Rodarte, will not be entitled to Chevron deference because the BIA did not use its Chevron delegated powers.  Fourth, it ought to cause OIL attorneys to rethink their axiomatic and indiscriminate invocation of Chevron in defense of poorly reasoned BIA decisions when the BIA decision itself did not rely on Chevron.  In short, if the message conveyed in the simple footnote in Delgado is not lost, it ought to bring additional restraints on administrative decision-making and bring additional rationality to judicial review of immigration decisions.

Please direct comments to amicus@aila.org.