Roderick Go v. Eric Holder, Jr.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RODERICK LIM GO, No. 11-73272

Petitioner,

Agency No.

v. A095-617-600

ERIC H. HOLDER, JR., Attorney

General, OPINION

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

January 15, 2014—San Francisco, California

Filed March 7, 2014

Before: J. Clifford Wallace and Susan P. Graber, Circuit

Judges, and Richard Mills, Senior District Judge.*

Opinion by Judge Wallace;

Special Concurrence by Judge Wallace

*

The Honorable Richard Mills, Senior District Judge for the U.S.

District Court for the Central District of Illinois, sitting by designation.

2 GO V. HOLDER

SUMMARY**

Immigration

The panel denied a petition for review of the Board of

Immigration Appeals’ denial of an untimely motion to reopen

seeking protection under the Convention Against Torture

based on changed country conditions in the Philippines.

The panel rejected petitioner’s contention that the specific

time and number limitations on motions to reopen, set forth

at 8 C.F.R. § 1003.2(c), do not apply to motions that arise

under the Convention Against Torture. The panel explained

that the Convention is not violated by the imposition of

reasonable procedural requirements on the adjudication of a

petitioner’s claims.

The panel held that the Board did not abuse its discretion

in concluding that petitioner failed to show that the changed

circumstances exception to the bar on untimely motions to

reopen applied to this case.

Specially concurring, Judge Wallace wrote separately to

bring to the court’s attention an intracircuit split concerning

the amount of deference owed under Auer v. Robbins,

519 U.S. 452 (1997), to a single-member, non-precedential

Board decision interpreting its own regulations.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

GO V. HOLDER 3

COUNSEL

Stacy Tolchin (argued), Law Offices of Stacy Tolchin, Los

Angeles, California, for Petitioner.

Stuart F. Delery, Principal Deputy Assistant Attorney

General; Blair T. O’Connor, Assistant Director; Don G.

Scroggin, and Matthew B. George (argued), Trial Attorneys,

United States Department of Justice, Office of Immigration

Litigation, Washington, D.C., for Respondent.

OPINION

WALLACE, Senior Circuit Judge:

Roderick Lim Go petitions us to review the Board of

Immigration Appeals’ (Board) denial of his motion to reopen

under the Convention Against Torture (CAT). Go contends

that the Board erroneously applied 8 C.F.R. § 1003.2(c), the

regulation governing motions to reopen, even though this

regulation “makes no reference” to the CAT. Go also

contends that the Board abused its discretion in concluding

that certain “new evidence” presented in his motion to reopen

was not material.

We have jurisdiction under 8 U.S.C. § 1252(a), and we

deny the petition. In a separately filed unpublished

disposition, we address the petition of Grace Tan Go, which

presents the same arguments as are presented here.

4 GO V. HOLDER

I.

In a previous proceeding, Go applied for asylum,

withholding of removal, and protection under the CAT. After

the Board denied those claims, we denied Go’s petition for

review in a published opinion. See Go v. Holder, 640 F.3d

1047 (9th Cir. 2011). Here, we briefly recapitulate the

background of this case, insofar as it is pertinent to the

present appeal.

As we explained in our prior opinion, Go’s application for

asylum and other forms of relief was predicated on his

allegation that he would be “subject to a sham criminal

prosecution in the Philippines if removed to that country.” Id.

at 1050. He alleged that he and his wife had been “falsely

charged with kidnapping” a prominent individual in the

Philippines, and that they had fled to the United States to

escape prosecution and avoid being retaliated against by

members of that individual’s family. Id. With respect to the

CAT, Go alleged that he “would be subject to torture if he

were held in a Philippine detention facility pending his trial

for kidnapping.” Id.

An immigration judge (IJ) found that Go was ineligible

for asylum and withholding of removal because of his

admission that he was “involved in an illegal drug-trafficking

scheme.” Id. As to the CAT claim, the IJ concluded that Go

had “failed to carry his burden of demonstrating eligibility for

relief.” Id. This conclusion was predicated on testimony

from a “government witness” who had “testified that Go

would not be tortured in a Philippine detention facility while

awaiting trial.” Id. In two separate orders, the Board denied

Go’s appeal. Id. The first of these orders affirmed the IJ’s

conclusion that Go was statutorily ineligible for asylum and

GO V. HOLDER 5

withholding of removal. Id. However, the CAT claim was

remanded for further proceedings. Id. After the IJ held

proceedings to address that claim more fully, the Board

issued its second order, which rejected Go’s claim for relief

under the CAT. Id. at 1051. In this order, the Board

considered several items of evidence that had been presented

before the IJ, including: (1) the fact that “one of Go’s co-

defendants in the kidnapping . . . had not been tortured or

otherwise mistreated”; (2) the testimony of Cezar Tajanlangit,

a former prosecutor in the Philippines, “who testified that

torture was uncommon in the facility where Go would be

detained”; (3) the “notoriety” of the case, which made it

“unlikely that an ill-intentioned officer would believe that he

could abuse [Go] without being reported in the press”; and

(4) a resolution issued by the Philippine Justice Department

that called for dismissal of the kidnapping charges against

Go. Id.

We denied Go’s petition to review the Board’s orders. As

to the CAT claim, we held that “substantial evidence

support[ed] the Board’s conclusion that Go is not likely to be

tortured upon return to the Philippines.” Id. at 1054. We

emphasized several aspects of the evidence that led to this

conclusion. First, we observed that one of Go’s “alleged

accomplices has been detained for some time without harm

or incident,” and that although several of his family members

had also been charged with participating in his alleged

crimes, none of them had been taken into government

custody, much less tortured. Id. at 1053. Second, we pointed

out that the Philippine government had ordered that the

kidnapping charges against Go be dismissed, and said that if

he is “no longer subject to a criminal prosecution in the

Philippines, it follows that he is unlikely to be detained, let

alone tortured.” Id. Finally, we stated that “even if the

6 GO V. HOLDER

kidnapping charges [were to] go forward,” there was still

additional evidence that Go was unlikely to be tortured. Id.

at 1054. We first highlighted that Tajanlangit, the former

prosecutor, had testified that torture was “not common” in the

facility where Go would be detained and that the

controversial nature of Go’s case would “increase public

scrutiny over the government’s conduct.” Id. We also

considered country reports stating that Philippine officials are

more likely to follow correct procedures where a criminal

suspect is from “an influential position or is of a higher social

status.” Id. “Viewing the record as a whole,” we upheld the

Board’s determination that Go was not likely to be tortured

upon return to the Philippines. Id.

Following our decision, Go filed a motion before the

Board to reopen for protection under the CAT. Go’s motion

to reopen was predicated upon “new and previously

unavailable evidence,” which Go alleged “call[ed] into

question” the testimony offered by Tajanlangit before the IJ.

The Board denied Go’s motion to reopen as untimely, citing

8 C.F.R. § 1003.2(c) in support of this conclusion. It also

held that the “additional evidence regarding [Tajanlangit]

does not affect the reliability or veracity of his testimony in

this proceeding,” while the other “additional background

evidence” submitted in connection with the motion to reopen

did not “indicate that conditions are worsening or

deteriorating in the Philippines in a manner material” to Go’s

claim.

II.

The regulations governing motions to reopen before the

Board appear at 8 C.F.R. § 1003.2. These regulations provide

that a party may file only one motion to reopen, and that such

GO V. HOLDER 7

a motion “must be filed no later than 90 days after the date on

which the final administrative decision was rendered in the

proceeding sought to be reopened.” 8 C.F.R. § 1003.2(c)(2).

There are several exceptions to these limitations on a party’s

eligibility to file a motion to reopen, including an exception

for motions to reopen “based on changed circumstances

arising in the country of nationality or in the country to which

deportation has been ordered, if such evidence is material and

was not available and could not have been discovered or

presented at the previous hearing.” Id. § 1003.2(c)(3)(ii).

Go’s principal argument is that the regulations governing

motions to reopen at 8 C.F.R. § 1003.2(c) do not apply to

motions that arise under the CAT, insofar as the language of

these regulations “makes no reference to either the [CAT] or

to deferral of removal.” This is an argument that we have

repeatedly rejected in a series of unpublished decisions. See,

e.g., Singh v. Holder, 444 F. App’x 167, 167 (9th Cir. 2011)

(rejecting the petitioner’s “contention that there are no time

limits for filing a motion to reopen to apply for CAT relief,”

and citing 8 C.F.R. § 1003.2(c)(2) in support of that

conclusion); Chen Chen v. Holder, 388 F. App’x 608, 609

(9th Cir. 2010) (same); Flores v. Holder, 362 F. App’x 773,

774 (9th Cir. 2010) (same); Lopez Hernandez v. Holder,

339 F. App’x 781, 782 (9th Cir. 2009) (same).

That conclusion is also supported by the logic of our

precedents and by holdings from our sister circuits.1 Our

1

Although the Board in this case held that § 1003.2 applies, we do not

defer to that decision, because it is a “one-member, non-precedential,

[Board] order” and, therefore, “does not reflect the agency’s fair and

considered judgment on the matter in question.” Lezama-Garcia v.

8 GO V. HOLDER

decision in Chen v. Mukasey, 524 F.3d 1028 (9th Cir. 2008),

is instructive. In Chen, we upheld a decision of the Board

holding that a petitioner’s motion to reopen was “time- and

number-barred . . . under 8 C.F.R. § 1003.2(c)(2).” Id. at

1030–31. The petitioner in that case argued that her removal

would violate the CAT. Id. at 1033. We rejected that

contention, stating that the petitioner had “failed to show how

[the CAT] is violated by the application of reasonable

procedural requirements for the adjudication of [a

petitioner’s] claims.” Id.

In support of that conclusion, we cited with approval the

First Circuit’s decision in Foroglou v. Reno, 241 F.3d 111

(1st Cir. 2001). As the First Circuit explained in Foroglou:

[The petitioner’s] main argument is that the

Board’s time limit on petitions to reopen is

itself invalid because it would result in

denying relief to deportees who might then

suffer torture, contrary to the [CAT] and to

the policies embodied in federal legislation

and regulations that implement the [CAT] or

otherwise protect the rights of aliens. The

short answer to this argument is that [the

petitioner] points to nothing in [the CAT] or

legislation that precludes the United States

from setting reasonable time limits on the

assertion of claims under [the CAT] in

connection with an ongoing proceeding or an

already effective order of deportation. Even

Holder, 666 F.3d 518, 532 (9th Cir. 2011) (internal quotation marks and

citation omitted).

GO V. HOLDER 9

in criminal cases, constitutional and other

rights must be asserted in a timely fashion.

Id. at 113.

Go’s argument, in a nutshell, is that there cannot be any

“regulatory limitation” on motions to reopen under the CAT.

But as we concluded in Chen, and as the First Circuit

explained in Foroglou, this is not the case. Rather, as we

held in Chen, the CAT is not violated by the imposition of

“reasonable procedural requirements” on the adjudication of

a petitioner’s claims. Chen, 524 F.3d at 1033. Indeed, in

Chen we implicitly held that the specific time and number

limitations on motions to reopen set forth in 8 C.F.R.

§ 1003.2(c)(2) could be applied to CAT claims, a holding we

make explicit in this opinion. Id. Go points to nothing in the

CAT itself, or in legislation implementing the CAT, that

would preclude the Board from setting reasonable procedural

requirements on motions to reopen under the CAT. See

Foroglou, 241 F.3d at 113. Moreover, Go points to no other

statute or regulation governing motions to reopen for CAT

claims. Thus, if 8 C.F.R. § 1003.2(c) did not apply to CAT

claims, there would be no mechanism for applicants under the

CAT to file a motion to reopen.

Finally, although we are aware of no published opinion

from another circuit that expressly holds that 8 C.F.R.

§ 1003.2(c) applies to CAT claims, it appears that every

circuit to have considered the question has concluded that it

does. See, e.g., Zheng v. Bureau of Citizenship &

Immigration Servs., 472 F. App’x 91, 92 (2d Cir. 2012)

(holding that “there is no merit to the petitioner’s argument

that motions to reopen seeking relief under the [CAT] are

excused from the applicable time and numerical limitations”);

10 GO V. HOLDER

Thomas v. Att’y Gen. of the U.S., 308 F. App’x 587, 591–92

(3d Cir. 2009) (concluding that a motion to reopen brought

under the CAT is governed by the time and number

limitations of 8 C.F.R. § 1003.2(c)); Sunarto v. Mukasey,

306 F. App’x 957, 961–62 (6th Cir. 2009) (concluding that a

motion to reopen that included a CAT claim was required to

meet the requirements of 8 C.F.R. § 1003.2(c)); Ding v. U.S.

Att’y Gen., 507 F. App’x 845, 847–48 (11th Cir. 2013)

(applying the timeliness limitation of 8 C.F.R. § 1003.2(c) to

a motion to reopen that included a CAT claim). As we have

repeatedly explained, in the immigration context the “need

for national uniformity is paramount,” because the power to

regulate immigration is “unquestionably exclusively a federal

power.” Ferreira v. Ashcroft, 382 F.3d 1045, 1050 (9th Cir.

2004) (internal quotation marks omitted); see also

Kaganovich v. Gonzales, 470 F.3d 894, 897–98 (9th Cir.

2006) (same). Thus, the uniformity among the circuits as to

the applicability of 8 C.F.R. § 1003.2(c) to CAT claims also

militates in favor of our holding.

Accordingly, we hold that the procedural requirements

specified in 8 C.F.R. § 1003.2(c) apply to CAT claims.

III.

Given that Go’s motion to reopen was governed by

8 C.F.R. § 1003.2(c), and therefore untimely, the Board

concluded that the motion could be granted only if it was

“based on changed circumstances arising in the country of

nationality” and predicated on “material” evidence of such

“changed circumstances” that was “not available and could

not have been discovered or presented at the previous

hearing.” The Board held that neither of the two types of

additional evidence presented in the motion to reopen met

GO V. HOLDER 11

this description. First, the Board considered additional

evidence regarding Tajanlangit, the former prosecutor from

the Philippines, and concluded that this evidence did not

“challenge or affect the credibility, reliability or veracity” of

his testimony. Second, the Board considered “additional

background evidence” about the Philippines. However, the

Board concluded that this evidence did not demonstrate

“worsening country conditions,” insofar as the record

“already contained generalized evidence suggesting a

relatively high level of mistreatment and abuse” in the

Philippines.

We review the Board’s denial of a motion to reopen for

abuse of discretion. Bhasin v. Gonzales, 423 F.3d 977, 983

(9th Cir. 2005). Under this standard, the Board’s decision

may only be reversed if it is “arbitrary, irrational, or contrary

to law.” Perez v. Mukasey, 516 F.3d 770, 773 (9th Cir. 2008)

(internal quotation marks omitted). We hold that the Board

did not abuse its discretion in concluding that Go’s additional

evidence was immaterial. First, as to Tajanlangit, Go offered

evidence that he was “admonished” by a court in a case

involving a disgruntled former client, as well as evidence

regarding a bounced check allegedly issued by the

prosecutor’s office. The Board did not abuse its discretion in

concluding that this evidence did not undermine the

“credibility, reliability or veracity” of Tajanlangit’s

statements in this proceeding. Second, Go offered evidence

showing that there is corruption and killing in the relevant

area of the Philippines. The Board did not abuse its

discretion in concluding that the evidence of “mistreatment

and abuse” presented by Go did not constitute evidence of

“worsening” country conditions, which means that this

evidence was insufficient to show that the “changed

12 GO V. HOLDER

circumstances” exception to the bar on untimely motions to

reopen applies to this case.

IV.

Finally, Go argues that the Board should have granted his

motion to reopen sua sponte pursuant to 8 C.F.R. § 1003.2(a).

However, we lack jurisdiction to review the Board’s decision

not to invoke its sua sponte authority to reopen proceedings.

See, e.g., Sharma v. Holder, 633 F.3d 865, 874 (9th Cir.

2011).

PETITION FOR REVIEW DENIED in part;

DISMISSED in part.

WALLACE, Senior Circuit Judge, concurring specially:

I write separately to call attention to an unfortunate

confusion in our precedents.

Our opinion makes the following assertion: “Although the

Board in this case held that § 1003.2 applies, we do not defer

to that decision, because it is a ‘one-member, non-

precedential, [Board] order’ and, therefore, does not reflect

the agency’s fair and considered judgment on the matter in

question.” Supra at 7 n.1., quoting Lezama-Garcia v. Holder,

666 F.3d 518, 532 (9th Cir. 2011) (internal quotation marks

and citation omitted). I accept this statement, because it

correctly reflects the holding in Lezama-Garcia. In my view,

however, Lezama-Garcia was wrongly decided. Worse, its

erroneous interpretation of Auer deference has created an

intracircuit split as to the type of deference owed to certain

GO V. HOLDER 13

agency pronouncements–namely, the one-member, non-

precedential Board decisions at issue here.

The outcome of this case is unaffected by this confusion,

insofar as Go did not raise the issue of the proper deference

to be accorded to the Board’s interpretation of the relevant

regulation, and thus waived any argument as to the issue. See

Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).

Nonetheless, I write separately to call this issue to the

attention of our court.

I.

The confusion addressed in this concurrence arises from

a misunderstanding of a crucial distinction in administrative

law. That distinction is between the proper deference owed

to an agency’s interpretation of a statute and the proper

deference owed to an agency’s interpretation of its own

regulations. The principles of Chevron deference apply to

the former. See, e.g., Gonzalez v. Oregon, 546 U.S. 243,

255–56 (2006), discussing Chevron U.S.A. Inc. v. Natural

Res. Def. Council, Inc., 467 U.S. 837 (1984). By contrast, the

principles of Auer deference apply to the latter. See, e.g., id.,

discussing Auer v. Robbins, 519 U.S. 452 (1997); see also

Price v. Stevedoring Servs. of Am., Inc., 697 F.3d 820,

828–29 (9th Cir. 2012) (explaining that Auer stands for the

“principle that agencies’ interpretations of their own

regulations are entitled to deference, even when their

interpretation of statutes is not,” whereas Chevron deference

applies to an agency’s statutory interpretations).

In this case, the issue is the Board’s interpretation of its

own regulations–namely, 8 C.F.R. § 1003.2. Thus, Auer

deference should apply.

14 GO V. HOLDER

“Agencies are entitled to deference to their interpretation

of their own regulations.” Native Ecosystems Council v. U.S.

Forest Serv., 418 F.3d 953, 960 (9th Cir. 2005). Under our

precedents,“where an agency interprets its own regulation,

even if through an informal process, its interpretation of an

ambiguous regulation is controlling under Auer unless

‘plainly erroneous or inconsistent with the regulation.’”

Bassiri v. Xerox Corp., 463 F.3d 927, 930 (9th Cir. 2006),

citing Auer, 519 U.S. at 461 (emphases added). This is

correct as a matter of administrative law. See Auer, 519 U.S.

at 461–62 (deferring to the interpretation of a regulation

presented in an amicus brief filed by the Department of

Labor). Thus, it is unsurprising that we have followed this

principle in a wide variety of contexts. See, e.g., Public

Lands for the People, Inc. v. U.S. Dept. of Agric., 697 F.3d

1192, 1199 (9th Cir. 2012) (according “wide deference” to

the Forest Service Manual’s interpretation of a regulation);

Barboza v. Cal. Ass’n of Prof’l Firefighters, 651 F.3d 1073,

1076, 1079 (9th Cir. 2011) (deferring to the interpretation of

a regulation advanced in an amicus brief by the Department

of Labor); Siskiyou Reg’l Educ. Project v. U.S. Forest Serv.,

565 F.3d 545, 548, 554–57 (9th Cir. 2009) (deferring to the

interpretation of a “mining-related directive” set forth in a

“Memorandum to Regional Foresters” issued by the Forest

Service); Silvas v. E*Trade Mortg. Corp., 514 F.3d 1001,

1005 n.1 (9th Cir. 2008) (deferring to an Office of Thrift

Supervision legal opinion interpreting a regulation); L.A.

Closeout, Inc. v. Dep’t of Homeland Sec., 513 F.3d 940,

941–42 (9th Cir. 2008) (deferring to an internal memorandum

used by the Department of Homeland Security in interpreting

a regulation). As these cases make clear, an agency’s

interpretation of an ambiguous regulation–no matter how

informal the pronouncement in which the agency advances its

GO V. HOLDER 15

interpretation–is controlling, unless that interpretation is

plainly erroneous or inconsistent with the regulation itself.

Recently, however, we misread this long line of

precedent. See Lezama-Garcia v. Holder, 666 F.3d 518 (9th

Cir. 2011). In Lezama-Garcia, the majority announced that

a single-member, non-precedential decision of the Board “is

entitled to no deference under Auer as an agency

interpretation of a regulation.” Id. at 532. Regrettably,

Lezama-Garcia has since led other panels within our Circuit

astray. See Errera v. Holder, 492 F. App’x 782, 791 (9th Cir.

2012) (Bennett, J., concurring).

The erroneous nature of this statement was correctly

pointed out by the dissent in Lezama-Garcia. 666 F.3d at

538–39 (Rawlinson, J., dissenting) (explaining that the

majority had erred, inter alia, by “giv[ing] absolutely no

deference to the agency’s interpretation of its regulation”).

The refusal of the majority in Lezama-Garcia to accord

deference, under Auer, to a non-precedential decision of the

Board is irreconcilable with Bassiri, which holds that even an

“informal” agency interpretation must be afforded Auer

deference. Bassiri, 463 F.3d at 930.

In support of its conclusion, the majority in Lezama-

Garcia cited a case from the Seventh Circuit, rather than

considering Bassiri or its progeny within the Ninth Circuit.

See Lezama-Garcia, 666 F.3d at 532, citing Joseph v. Holder,

579 F.3d 827, 833–35 (7th Cir. 2009). To make this already

confusing situation even more confounded, the reasoning of

the Seventh Circuit has been rejected by both the Second and

Eighth Circuits. Compare Joseph, 579 F.3d at 832–33

(deciding to afford lesser deference to a non-precedential,

one-member decision of the Board) with Mansour v. Holder,

16 GO V. HOLDER

739 F.3d 412, 414–15 (8th Cir. 2014) (holding that “[t]o the

extent the [unpublished Board] decision interprets its own

regulations, the interpretation is controlling unless ‘plainly

erroneous or inconsistent with the regulation’”) and Linares

Huarcaya v. Mukasey, 550 F.3d 224, 228–30 (2d Cir. 2008)

(giving “substantial deference” under Auer to a non-

precedential Board decision interpreting Justice Department

regulations).

In any event, and regardless of the contrary

misinterpretations proffered by us in Lezama-Garcia and by

the Seventh Circuit in Joseph, the law of our circuit is clear:

“where an agency interprets its own regulation, even if

through an informal process, its interpretation of an

ambiguous regulation is controlling under Auer unless

‘plainly erroneous or inconsistent with the regulation.’”

Bassiri, 463 F.3d at 930.

II.

The distinction between the type of deference owed to an

agency’s interpretation of a statute and that owed to its

interpretation of its own regulations is critical to

understanding the case on which Lezama-Garcia relied. In

Garcia-Quintero v. Gonzales, 455 F.3d 1006 (9th Cir. 2006),

we considered whether unpublished, non-precedential

decisions of the Board should be afforded Chevron deference.

Id. at 1012–13. The question of whether Chevron deference

should be afforded to the Board’s decision was appropriate,

because the court in Garcia-Quintero was considering the

Board’s interpretation of “the cancellation of removal statute,

8 U.S.C. § 1229b.” Id. at 1009. The holding of Garcia-

Quintero was strictly that Chevron deference should not be

afforded to unpublished, non-precedential decisions of the

GO V. HOLDER 17

Board. Id. at 1014. Garcia-Quintero says nothing about

Auer deference.

Lezama-Garcia, which relied upon Garcia-Quintero,

crucially failed to apprehend that the latter case was

considering an agency’s interpretations of a statute, and thus

solely dealt with Chevron deference. Lezama-Garcia begins

by observing that Garcia-Quintero had held that a “single-

member [Board] decision interpreting a statutory provision”

is entitled only to deference “in proportion to [its] power to

persuade.” Lezama-Garcia, 666 F.3d at 532. So far, so good.

The opinion in Lezama-Garcia then falls into error, however,

when it goes on to hold that “[f]or a similar reason, [a single-

member Board decision] is entitled to no deference under

Auer as an agency interpretation of a regulation.” Id. The

error, again, is in failing to recognize that Chevron and Auer

deference are significantly different, and that the reasons for

deferring (or not deferring) under Chevron are not relevantly

“similar” to the reasons for deferring (or not deferring) under

Auer.

The relevant difference between Chevron and Auer

deference is well explained by Judge Berzon in her recent

opinion in Price. There, she discusses the distinction

between “an agency’s informal interpretations of its own

regulations [which are entitled to Auer deference] and of its

governing statute [which are entitled to Chevron deference].”

Price, 697 F.3d at 829. As she explains, the “rigors of

rulemaking” are pertinent to an understanding of why, in the

context of an agency’s statutory interpretation, courts are to

apply principles of Chevron deference. Id. By contrast, once

an agency has “undertake[n] careful deliberation about how

best to effectuate statutory policies during the demanding

process of promulgating regulations”–a process during which,

18 GO V. HOLDER

importantly, “agencies are held accountable to the public

through the formal rulemaking process”–it makes sense to

demand “[l]ess formality” of an agency’s “subsequent

interpretation” of its own regulations. Id. at 829–30. Thus,

in the latter context, the principles of Auer deference are

appropriate.

As this discussion indicates, it does not follow, from the

fact that we would afford no Chevron deference to a single-

member Board interpretation of a statute, that we would

therefore also afford no Auer deference to such an

interpretation of a regulation. See Lezama-Garcia, 666 F.3d

at 532. If Lezama-Garcia had applied Bassiri and its

progeny, this error would have been avoided.

III.

One might try to salvage the holding in Lezama-Garcia

by arguing that Auer does not mandate deference to a one-

member, unpublished decision of the Board, insofar as such

a decision is not legally binding on the agency itself. Such an

argument, however, would be unfounded. I know of no case

in which we have held that the general principles of Auer

deference, as articulated in such cases as Bassiri, should not

be followed if the pronouncement in which the agency

articulates its interpretation of a regulation is not legally

binding on that agency.

In fact, our court has afforded Auer deference to agency

documents that are not legally binding on the agency that

issued them. In Public Lands for the People, Inc. v. U.S.

Department of Agriculture, 697 F.3d 1192, 1199 (9th Cir.

2012), we gave “wide deference” under Auer to the Forest

Service Manual’s interpretation of a regulation. But in

GO V. HOLDER 19

Western Radio Services Co., Inc. v. Espy, 79 F.3d 896 (9th

Cir. 1996), we held that the Forest Service Manual does not

have the force and effect of law, insofar as it is “not

substantive in nature,” is “not promulgated in accordance

with the procedural requirements of the Administrative

Procedure Act,” and is not “promulgated pursuant to an

independent congressional authority.” Id. at 901. Therefore,

we held that the Forest Service Manual cannot be binding on

the agency that promulgated it. Id. at 901–02.

Thus, even though we have expressly held that the Forest

Service Manual does not have the force of law and is not

binding on the agency that promulgated it, our court has

nonetheless given Auer deference to the interpretation of a

regulation set forth by that Manual. Public Lands, 697 F.3d

at 1199. Under the same logic, and under Bassiri and its

progeny, we must give Auer deference to an unpublished

decision by the Board, even though such a decision lacks the

force of law and is not binding on the Board.

IV.

Although I agree with the outcome arrived at by our

opinion, a more straightforward way to reach that outcome

would have been through the principles of Auer deference.

Those principles, as articulated by this court’s precedents,

teach that we should regard as “controlling” the Board’s

decision to address motions to reopen that present CAT

claims under 8 C.F.R. § 1003.2(c). Bassiri, 463 F.3d at 930

(9th Cir. 2006). When considering whether to defer under

Auer, we begin by determining whether the regulation is

ambiguous. Id. at 931 (citation omitted). If the regulation is

ambiguous, the agency’s interpretation is controlling unless

that interpretation is “plainly erroneous or inconsistent with

20 GO V. HOLDER

the regulation.” Id. (citations omitted). “Under this standard,

we defer to the agency’s interpretation of its regulation unless

an alternative reading is compelled by the regulation’s plain

language or by other indications of the [agency’s] intent at the

time of the regulation’s promulgation.” Id. (internal

quotation marks and citation omitted).

Applying this standard, we should defer to the Board’s

interpretation of 8 C.F.R. § 1003.2(c). First, the regulation is

ambiguous. Although the regulation does not expressly refer

to the CAT, there is also nothing in the language of the

regulation that precludes applying it to CAT claims. Indeed,

as our opinion observes, this court has repeatedly taken for

granted that it does apply to CAT claims. Thus, the

regulation is ambiguous as to this issue. Accordingly, under

Auer, we must defer to the Board’s interpretation unless an

alternative interpretation is “compelled by the regulation’s

plain language” or by other indications of the Board’s intent

at the time the regulation was promulgated. Id. As discussed

above, 8 C.F.R. § 1003.2(c) is silent as to CAT claims; thus,

the plain language of the regulation does not compel us to

reject the Board’s interpretation that it applies to such claims.

Nor does Go point to any indications that the Board intended

for the regulation not to apply to CAT claims at the time it

was promulgated. Therefore, the Board’s interpretation that

8 C.F.R. § 1003.2(c) applies to CAT claims is controlling,

and we should defer to that interpretation.1

1

Go does not argue that the regulation at issue, 8 C.F.R. § 1003.2(c), is

itself an improper interpretation of the Immigration and Nationality Act.

In any event, such an argument would fail. See Vega v. Holder, 611 F.3d

1168, 1170–71 (9th Cir. 2010).

GO V. HOLDER 21

V.

In general, the “appropriate mechanism for resolving an

irreconcilable conflict [between our decisions] is an en banc

decision.” United States v. Hardesty, 977 F.2d 1347, 1348

(9th Cir. 1992) (en banc) (per curiam). However, we have

also held that even where the “orderly development” of our

case law “might benefit from an en banc review,” it is not

necessary to engage in such review if a particular case does

not “compel[]” us to do so. Vasquez v. Astrue, 572 F.3d 586,

593 n.5 (9th Cir. 2008) (explaining that we may “avoid a

choice among rules which [the] case does not require”).

Here, because of Go’s waiver of the issue, and because we

arrive at the same result regardless of the level of deference

provided to the Board’s interpretation of 8 C.F.R.

§ 1003.2(c), this case does not require us to call for en banc

review to resolve the tension between Bassiri and its progeny

and the inconsistent view expressed in Lezama-Garcia. Thus,

it will fall to a future panel of our court to address this

confusion and correct the error of Lezama-Garcia.