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 The BIA affirmed because they explained, in an unpublished opinion, that Delgado had been convicted of a particularly serious crime.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.

A few weeks ago, we discussed the conspicuous absence of AG Holder from the ongoing Silva-Trevino controversy.  Since that time, the BIA has issued another opinion attempting to articulate when it is proper for an IJ to abandon traditional categorical (Step One) and Modified Categorical (Step Two) and resort to Silva-Trevino’s amorphous Step Three.

Removal matters decided solely on Silva-Trevino Step Three continue to make their way to Circuit Court.  The issue then becomes whether the agency’s opinion in Silva-Trevino is entitled to any judicial deference, and if so, how much.

AILA, joined by the Immigrant Defense Project, Immigrant Legal Resource Center, National Immigration Project of the National Lawyers’ Guild, and the University of Maryland School of Law Immigration Clinic, filed an Amicus Brief with the 4^th Circuit Court of Appeals last week arguing former AG Mukasey’s needless departure from a century of case law in Silva-Trevino is entitled to no deference.  In fact, the 4^th Circuit observed thirty-five years ago that the focus of the INA “is on the type of crime committed rather than on the factual context surrounding the actual commission of the offense.”  Castle v. INS, 541 F.2d 1064, 1066 n. 5 (4^th Cir. 1976).  There was no ambiguity then (which could make room for reasonable agency interpretation) and there is no ambiguity now.  AG Mukasey simply ignored the plain language of the statute, which makes the focus on the criminal conviction, rather than the circumstances surrounding a criminal arrest.

The Waheed brief was assembled and edited by Jeremy McKinney, Maria Andrade, and Russell Abrutyn for AILA and Isaac Wheeler for the Immigrant Defense Project.  However, the brief itself is simply the latest rendition of what AILA and other associations have been saying since Silva-Trevino was released in 2008.  The original scholarship came from many others who blazed the trail, such as Br. of IDP et al. as Amicus Curiae, Prudencio v Holder, No. 10-2382 (4^th Cir. 2011) and Br. of AILA et al. in Support of Motion for Reconsideration, Matter of Silva-Trevino (A.G. 2008).  Hopefully, our unified message and team approach to Silva-Trevino litigation will continue to yield results!

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.

We begin a regular review at what’s happened and happening at the BIA.

Matter of Gamero, 25 I&N Dec. 164 (BIA 2010) (Jan. 13, 2010)

Has voluntary departure gotten complicated enough for you? Well, the BIA has added another chapter to the Vol. Dep. Book now with this decision. The BIA has determined that voluntary departure may only be reinstated by the Board if the Respondent provides proof of the posting a voluntary departure bond with the notice of appeal. As Gamero was not on notice of this requirement and the Immigration Judge failed to provide warnings of the need to provide proof of the voluntary departure bond with the notice of appeal, the case was remanded to permit warnings to be given. Presumably the Board is also allowing Gamero to comply with this new requirement.

Matter of Diaz and Lopez, 25 I&N Dec. 188 (BIA 2010)(Jan. 27, 2010)

Just when you thought it was safe to live in the 9th Circuit, the BIA comes back with another repudiation of 9th Circuit precedent. The legal issue at hand is whether or not INA §254(i) trumps the permanent bar on admission found in INA §212(a)(9)(C)(i)(I)? Previously in Acosta v. Gonzales, 4329 F.3d 580 (9th Cir. 2006) determined that §245(i) did trump the permanent bar.

Since that time, however, the BIA directly addressed the question of the interplay between the two statutes and in Matter of Briones, 24 I&N Dec. 355 (BIA 2007) found the opposite of the 9th Circuit. The Board found the §212(a)(9)(C)(i) could not be overcome, even through adjustment under §245(i).

Both cases, now consolidated by the BIA, arose in the 9th Circuit and the Board directly challenges the Circuit’s previous finding and urges the Circuit to adopt the Board’s administrative interpretation of the two statutes pursuant to Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005) and Chevron, USA., Inc. V. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). The Board points out in its decision that the Second, Sixth and Seventh Circuits have given deference under Chevron to the BIA’s interpretation of the two statutes.

Additionally, the BIA pointed out that the 9th Circuit had recently adopted it’s interpretation of the interaction between INA §§245(i) and 212(a)(9)(C)(i)(II) by giving deference to the Board because of the ambiguity of the statutes and in the process overturning prior 9th Circuit precedent.

In it’s analysis, the Board rejected the argument that it was bound by Mercado-Zzueta v. Holder, 580 F.3d 1102 (9th Cir. 2009) that precludes an agency from “repeatedly putting forward an interpretation . . .” that has already been rejected as unreasonable. Diaz & Lopez at 190. The BIA says “take THAT 9th Circuit.”

Matter of Neto, 25 I&N Dec. 169 (BIA 2010).

The on-going saga of INA §204(j) and Matter of Perez-Vargas, 23 I&N Dec. 829 (BIA 2005) may be finally coming to a close. Under Perez-Vargas, the Board had determined that an Immigration Judge lacked jurisdiction to determine whether an employment-based visa petition remained valid under §204(j). The decision caused great confusion and a few Circuit Court cases as well. Three circuits, including the Fourth, Fifth and Sixth rejected the Board’s analysis after Perez-Vargas. As a result, the Board adopted the Circuit Courts’ interpretations and explicitly recognizes the Board’s and Immigration Judge’s authority to determine whether, despite a change of employment, an employment-based visa petition remains valid.

Sanity has now been restored—at least on this issue.

Matter of T-M-H- & S-W-C-, 25 I&N Dec. 193 (BIA 2010).

A husband and wife, natives and citizens of China were granted asylum under INA §208. Their asylum applications were filed within one year following the birth of their second child. The Court determined that applicants are not allowed a year to file asylum following “changed circumstances.” The BIA points out that the regulations require such applications to be filed “within a reasonable period . . ..” T-M-H- & S-W-C- at 194, citing 8 C.F.R. §1208.4(a)(4)(ii).

The BIA refers to prior decisions and Supplementary Information included with the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), that states that a person whose immigration status is terminated or expired is generally required to file for asylum within a “reasonable period,” which has been determined to be less than six months. T-M-H- & S-W-C- at 195.

The case is remanded to determine whether the 9 month delay by the female respondent in filing for asylum and a one-year delay in filing by the male respondent following the birth of their second child is reasonable. The IJ has been instructed to make additional findings of fact “with respect to the particular circumstances involved in the delay[s] . . ….” T-M-H- & S-W-C- at 196.

Matter of Morales, 25 I&N Dec. 186 (BIA 2010).

Respondent had filed for cancellation of removal for non-permanent residents pursuant to INA §240A(b). The Immigration Judge (“IJ”) denied the application and granted voluntary departure.

The IJ had failed to consider Respondent’s step-father as a qualifying relative in determining whether the requisite hardship standard had been met. The Board points out that the definition of “parent” under the INA includes step-parents who meet particular requirements and moreover, Board cases had recognized step-parents ahs visa petitioners for many years.

The BIA found that a step-parent meeting the definition of “parent” under INA§101(b)(2) and must be considered in making a hardship determination under INA §240A(b)(1)(D).

When this decision came out, it seemed unnecessary, but apparently at least one judge in Los Angeles, CA was unable to properly evaluate the meaning of “parent” pursuant to the Immigration Laws. Another positive step forward for the Board.

Matter of Rose, 25 I&N Dec. (BIA 2010).

Ms. Rose was married to a United States citizenship and received conditional permanent resident status through her husband’s petition on her behalf. Unfortunately, he died prior to the removal of conditions on Ms. Rose’s permanent resident status. The Respondent, Ms. Rose, filed a petition to remove the conditions on her residence, but the case was denied and the Respondent’s status was terminated.

The IJ reviewed the Service’s decision and likewise denied it because the I-751 Petition to Remove Conditions was not filed jointly and there was no determination that Respondent was eligible for a waiver. A direct appeal was dismissed and a motion to reconsider was filed.

In consideration of the issue before it, the BIA determined that the death of a spouse during the two-year conditional period waives the need to file a joint petition, but the surviving spouse need not file a separate waiver if the initial petition is filed timely and the Respondent appears for an interview.

The Board determined that INA §216(c)(1)(A) and (B) exempts windows and widowers from having to file a joint petition and attend an interview. Therefore, it was an error for the Service and the IJ to deny the case for failure to make a waiver claim. The BIA also reiterates that it is the Services’ burden of proving “by a preponderance of the evidence,” that the Respondent is removable. Matter of Rose, at 185. The record was remanded.

– blogging by Kerry Doyle, AILA Amicus Committee member.

The Board has scheduled oral argument on Matter of T-, a case in which AILA appeared as an amicus along with the American Immigration Council and the Northwest Immigrant Rights Project. The BIA queried the parties on:

(a) Whether the Board, invoking the Supreme Court’s decision in Brand X, may decline to follow the Ninth Circuit’s “disfavored group” analysis?
(b) What is the impact the Ninth Circuit’s decisions in Sael v. Ashcroft, 386 F.3d 922 (CA9 2004) and Wakkary v. Holder, 558 F.3d 1049 (CA9 2009) on the disfavored group analysis?

The petitioner’s is represented by Drew Sieminski of the law offices of Chung Phang. Individuals with cases before the Board raising a similar issues might wish to contact AILA amicus.