Amicus Curiae Brief — James L. Kisor, Petitioner v. Robert Wilkie, Secretary of Veterans Affairs

Supreme Court briefJan 31, 2019

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No. 18-15

IN THE

Supreme Court of the United States

___________

JAMES L. KISOR,

Petitioner,

ROBERT L. WILKIE, SECRETARY OF VETERANS AFFAIRS,

Respondent.

___________

On Writ of Certiorari

to the United States Court of Appeals

for the Federal Circuit

___________

BRIEF FOR AMICI CURIAE

THE NATIONAL IMMIGRANT JUSTICE CENTER

AND THE AMERICAN IMMIGRATION LAWYERS

ASSOCIATION IN SUPPORT OF PETITIONER

___________

CHARLES ROTH

NATIONAL IMMIGRANT

JUSTICE CENTER

208 S. LaSalle Street,

Suite 1300

Chicago, IL 60604

(312) 660-1613

JEAN-CLAUDE ANDRÉ *

ANDREW B. TALAI

GERRY B. HIRSCHFELD

SIDLEY AUSTIN LLP

555 W. Fifth Street,

Suite 4000

Los Angeles, CA 90013

(213) 896-6000

jcandre@sidley.com

RUSSELL ABRUTYN

WILLIAM A. STOCK

AMERICAN IMMIGRATION

DEREK A. WEBB

LAWYERS ASSOCIATION

SIDLEY AUSTIN LLP

1331 G Street, N.W.

1501 K Street, N.W.

Suite 300

Washington, D.C. 20005

(202) 736-8000

(202) 507-7600

Counsel for Amici Curiae

January 31, 2019

* Counsel of Record

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................

INTEREST OF AMICI CURIAE ..........................

INTRODUCTION AND SUMMARY OF THE

ARGUMENT ......................................................

ARGUMENT .........................................................

I. THE COURT SHOULD OVERRULE AUER

BECAUSE IT EXCEEDS SEMINOLE

ROCK PRINCIPLES .....................................

II. THE MANY DISPARATE FORMS OF

SUBREGULATORY INTERPRETATION

TO WHICH AUER DEFERENCE APPLIES

HARM THE REGULATED PUBLIC ...........

A. A strong form of Auer deference does not

account for the many different forms of

subregulatory interpretation to which

courts have applied it ..............................

B. The evils of Auer are most notable in

their effects on the regulated public .......

III. AUER DEFERENCE IS PERNICIOUS

WHERE QUASI-JUDICIAL AGENCIES

LIKE THE BIA INTERPRET REGULATIONS THROUGH ADJUDICATION .........

A. Most circuits give Auer deference to the

BIA’s interpretation of ambiguous regulations .......................................................

B. Affording Auer deference to BIA adjudications is particularly problematic .........

CONCLUSION .....................................................

(i)

CASES

TABLE OF AUTHORITIES

Page

Archuleta v. Wal-Mart Stores, Inc. (In re

Wal-Mart Stores, Inc., Fair Labor

Standards Act Litig.), 395 F.3d 1177 (10th

Cir. 2005) ............................................ 15, 16, 24

Ass’n of Bituminous Contractors, Inc. v.

Apfel, 156 F.3d 1246 (D.C. Cir. 1998)........

Auer v. Robbins, 519 U.S. 452 (1997) ....... passim

Barnes v. Holder, 625 F.3d 801 (4th Cir.

2010) ...........................................................

Belt v. EmCare, Inc., 444 F.3d 403 (5th Cir.

2006) ...........................................................

Benslimane v. Gonzales, 430 F.3d 828 (7th

Cir. 2005) ....................................................

Bigelow v. Dep’t of Def., 217 F.3d 875 (D.C.

Cir. 2000) ....................................................

Bowles v. Seminole Rock & Sand Co., 325

U.S. 410 (1945) .......................................... 6, 7, 8

Chase Bank USA, N.A. v. McCoy, 562 U.S.

195 (2011) ...................................................

Christopher v. SmithKline Beecham Corp.,

567 U.S. 142 (2012) ............................ 13, 26, 28

Coeur Alaska, Inc. v. Se. Alaska Conservation Council, 557 U.S. 261 (2009) ..........

Cruz Rendon v. Holder, 603 F.3d 1104 (9th

Cir. 2010) ....................................................

Decker v. Nw. Envtl. Def. Ctr., 568 U.S. 597

(2013) ................................................. 20, 21, 27

Dhuka v. Holder, 716 F.3d 149 (5th Cir.

2013) ...........................................................

Drake v. FAA, 291 F.3d 59 (D.C. Cir.

2002) ...........................................................

iii

TABLE OF AUTHORITIES—continued

Page

Ehlert v. United States, 402 U.S. 99

(1971) ..........................................................

Excel Corp. v. U.S. Dep’t of Agric., 397 F.3d

1285 (10th Cir. 2005) .................................

Fong Haw Tan v. Phelan, 333 U.S. 6

(1948) ..........................................................

Ford Motor Credit Co. v. Milhollin, 444 U.S.

555 (1980) ...................................................

Galina v. INS, 213 F.3d 955 (7th Cir.

2000) ...........................................................

Go v. Holder, 744 F.3d 604 (9th Cir.

2014) ...........................................................

Gomez v. Lynch, 831 F.3d 652 (5th Cir.

2016) ............................................. 23, 25, 29, 31

Gonzales v. Oregon, 546 U.S. 243 (2006) ......

Gourzong v. Attorney Gen., 826 F.3d 132 (3d

Cir. 2016) ....................................................

Halmenschlager v. Holder, 331 F. App’x 612

(10th Cir. 2009) ..........................................

Halo v. Yale Health Plan, 819 F.3d 42 (2d

Cir. 2016) ....................................................

Henry v. INS, 74 F.3d 1 (1st Cir. 1996) ........

Hernandez-Perez v. Whitaker, 911 F.3d 305

(6th Cir. 2018) ............................................

Humphrey’s Ex’r v. United States, 295 U.S.

602 (1935) ...................................................

INS v. Cardoza-Fonseca, 480 U.S. 421

(1987) ........................................................ 29, 30

INS v. Aguirre-Aguirre, 526 U.S. 415

(1999) ..........................................................

Intermodel Techs., Inc. v. Peters, 549 F.3d

1029 (6th Cir. 2008) ...................................

Jordan v. De George, 341 U.S. 223 (1951) ....

TABLE OF AUTHORITIES—continued

Page

Joseph v. Holder, 579 F.3d 827 (7th Cir.

2009) ...........................................................

Kadia v. Gonzales, 501 F.3d 817 (7th Cir.

2007) ...........................................................

Kaplun v. Attorney Gen., 602 F.3d 260 (3d

Cir. 2010) ....................................................

Kiorkis v. Holder, 634 F.3d 924 (7th Cir.

2011) ...........................................................

L.D.G. v. Holder, 744 F.3d 1022 (7th Cir.

2014) ...........................................................

LaFleur v. Whitman, 300 F.3d 256 (2d Cir.

2002) ...........................................................

Lee v. United States, 137 S. Ct. 1958

(2017) ..........................................................

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

Cir. 2011) .................................................. 25, 29

Li Shan Chen v. U.S. Attorney Gen., 672

F.3d 961 (11th Cir. 2011) ...........................

Lin v. U.S. Dep’t of Justice, 416 F.3d 184 (2d

Cir. 2005) ....................................................

Linares Huarcaya v. Mukasey, 550 F.3d 224

(2d Cir. 2008) ............................................ 25, 29

Long Island Care at Home, Ltd. v. Coke, 551

U.S. 158 (2007) ......................................... 14, 30

Maldonado v. Lynch, 786 F.3d 1155 (9th Cir.

2015) ...........................................................

Mansour v. Holder, 739 F.3d 412 (8th Cir.

2014) .................................................. 23, 25, 29

Martinez v. Holder, 740 F.3d 902 (4th Cir.

2014) ...........................................................

Mellouli v. Lynch, 135 S. Ct. 1980 (2015) ... 18, 30

Mohammed v. Gonzales, 400 F.3d 785 (9th

Cir. 2005) ....................................................

TABLE OF AUTHORITIES—continued

Page

Morgan v. United States, 304 U.S. 1

(1938) ........................................................ 21, 29

Mullins Coal Co. of Va. v. Dir., Office of

Workers’ Comp. Programs, 484 U.S. 135

(1987) ..........................................................

Nat’l Ass’n of Home Builders v. Defs. of

Wildlife, 551 U.S. 644 (2007) .....................

N. Ind. Pub. Serv. Co. v. Porter Cty. Chapter

of Izaak Walton League of Am., Inc., 423

U.S. 12 (1975) .............................................

Ohio Valley Envtl. Coal. v. Aracoma Coal

Co., 556 F.3d 177 (4th Cir. 2009) ..............

Perez v. Mortg. Bankers Ass’n, 135 S. Ct.

1199 (2015) ............................................. passim

Perriello v. Napolitano, 579 F.3d 135 (2d Cir.

2009) ...........................................................

Peters v. Hobby, 349 U.S. 331 (1955) ............

Pub. Lands for the People, Inc. v. U.S. Dep’t

of Agric., 697 F.3d 1192 (9th Cir. 2012) ....

Qwest Corp. v. Colo. Pub. Utils. Comm’n, 656

F.3d 1093 (10th Cir. 2011) .........................

Reno v. Flores, 507 U.S. 292 (1993) ..............

SEC v. Chenery Corp., 318 U.S. 80 (1943) ...

Siskiyou Reg’l Educ. Project v. U.S. Forest

Serv., 565 F.3d 545 (9th Cir. 2009) ...........

Skidmore v. Swift & Co., 323 U.S. 134

(1944) ........................................................ 3, 5, 6

Talk Am., Inc. v. Mich. Bell Tel. Co., 564 U.S.

50 (2011) .....................................................

Thomas Jefferson Univ. v. Shalala, 512 U.S.

504 (1994) ...................................................

Thorpe v. Hous. Auth. of Durham, 393 U.S.

268 (1969) ...................................................

Udall v. Tallman, 380 U.S. 1 (1965) ............

TABLE OF AUTHORITIES—continued

Page

United States v. Mead Corp., 533 U.S. 218

(2001) ..........................................................

W. Radio Servs. Co. v. Qwest Corp., 678 F.3d

970 (9th Cir. 2012) .....................................

Wang v. Attorney Gen., 423 F.3d 260 (3d Cir.

2005) ...........................................................

Zhang v. Holder, 617 F.3d 650 (2d Cir.

2010) ......................................................... 24, 30

STATUTES AND REGULATIONS

5 U.S.C. § 553(b)(A) .......................................

8 U.S.C. § 1229a ............................................

§ 1101 et seq. ...................................

§ 1182(a)(1) .....................................

8 C.F.R. § 100.1 et seq. ..................................

42 C.F.R. § 34.2(c) .........................................

ADMINISTRATIVE DECISION

Matter of Armendarez-Mendez, 24 I. & N.

Dec. 646 (B.I.A. 2008) ................................

SCHOLARLY AUTHORITIES

Aditya Bamzai, Henry Hart’s Brief, Frank

Murphy’s Draft, and the Seminole Rock

Opinion, Yale J. Reg.: Notice & Comment

(Sept. 12, 2016), http://yalejreg.com/nc/

henry-harts-brief-frank-murphys-draftand-the-seminole-rock-opinion-by-adityabamzai/ .......................................................

Cynthia Barmore, Auer in Action: Deference

After Talk America, 76 Ohio St. L.J. 813

(2015) ..........................................................

vii

TABLE OF AUTHORITIES—continued

Page

Sanne H. Knudsen & Amy J. Wildermuth,

Unearthing the Lost History of Seminole

Rock, 65 Emory L.J. 47 (2015) ...................

John F. Manning, Constitutional Structure

and Judicial Deference to Agency Interpretations of Agency Rules, 96 Colum. L. Rev.

612 (1996) ................................................. 21, 28

Jeffrey A. Pojanowski, Revisiting Seminole

Rock, 16 Geo. J. L. & Pub. Pol’y 87

(2018) ..........................................................

William Yeatman, Note, An Empirical

Defense of Auer Step Zero, 106 Geo. L.J.

515 (2018) ................................................. 16, 17

OTHER AUTHORITIES

Bd. of Immigration Appeals, U.S. Dep’t of

Justice, Board of Immigration Appeals

Practice Manual, https://www.justice.gov/

eoir/page/file/1103051/download (last

updated Oct. 16, 2018) ....................... 22, 23, 26

Black’s Law Dictionary (10th ed. 2014) .......

Tara Copp, As Many as 11,800 Military

Families Face Deportation Issues, Group

Says, Mil. Times (Apr. 1, 2018), https://

www.militarytimes.com/news/yourmilitary/2018/04/01/as-many-as-11800military-families-face-deportation-issuesgroup-says/ .................................................

viii

TABLE OF AUTHORITIES—continued

Jason Dzubow, Former BIA Chairman Paul

W. Schmidt on His Career, the Board, and

the Purge (part 2), The Asylumist (Oct. 5,

2016), https://www.asylumist.com/2016/

10/05/former-bia-chairman-paul-wschmidt-on-his-career-the-board-and-thepurge-part-2/ ..............................................

Exec. Office for Immigration Review, U.S.

Dep’t of Justice, Board of Immigration

Appeals,

https://www.justice.gov/eoir/

board-of-immigration-appeals

(last

visited Jan. 31, 2019) .................................

Lisa Getter & Jonathan Peterson, Speedier

Rate of Deportation Rulings Assailed, L.A.

Times (Jan. 5, 2003), http://articles.

latimes.com/2003/jan/05/nation/naimmig5 ........................................................

U.S. Gov’t Accountability Office, GAO-17438, Immigration Courts: Actions Needed

to Reduce Case Backlog and Address

Long-Standing Management and Operational Challenges (2017) ..........................

U.S. Citizenship & Immigration Servs.,

Discretionary

Options

for

Military

Members, Enlistees and Their Families,

https://www.uscis.gov/military/discretionaryoptions-military-members-enlistees-andtheir-families (last visited Jan. 31,

2019) ...........................................................

Page

TABLE OF AUTHORITIES—continued

Page

U.S. Citizenship & Immigration Servs., U.S.

Dep’t of Homeland Sec., PA-2018-09,

Policy Alert: Validity of Report of Medical

Examination and Vaccination Record

(Form I-693) (2018), https://www.uscis.

gov/policymanual/Updates/20181016-I693Validity.pdf ...........................................

U.S. Citizenship & Immigration Servs., U.S.

Dep’t of Homeland Sec., PA-2014-005,

Policy Alert: Validity Period of the Medical

Certification on the Report of Medical

Examination and Vaccination Record

(Form I-693) (2014), https://www.uscis.

gov/policymanual/Updates/20140530-I693Validity.pdf ...................................... 19, 20

U.S. Citizenship & Immigration Servs., U.S.

Dep’t of Homeland Sec., PM-602-0091,

Policy Memorandum: Parole of Spouses,

Children and Parents of Active Duty

Members of the U.S. Armed Forces or

Selected Reserve of the Ready Reserve and

the Effect of Parole on Inadmissibility

under Immigration and Nationality Act §

212(a)(6)(A)(i) (2013), https://www.uscis.

gov/sites/default/files/USCIS/Laws/Memo

randa/2013/2013-1115_Parole_in_Place_

Memo_.pdf ..................................................

U.S. Dep’t of Homeland Sec., Families of

U.S. Armed Forces Members and

Enlistees (2014), https://www.dhs.gov/

sites/default/files/publications/14_1120_

memo_parole_in_place.pdf.........................

INTEREST OF AMICI CURIAE1

The National Immigrant Justice Center (“NIJC”) is

a program of the Heartland Alliance for Human Needs

and Human Rights, a non-profit corporation headquartered in Chicago, Illinois. NIJC is dedicated to ensuring human rights protections and access to justice

for all immigrants, refugees, and asylum seekers. By

partnering with more than 1,000 attorneys from the

Nation’s leading law firms, NIJC provides direct legal

services to approximately 10,000 individuals annually.

This experience informs NIJC’s advocacy, litigation,

and educational initiatives, as it promotes human

rights on a local, regional, national, and international

stage. NIJC has a substantial interest in the issue now

before the Court, both as an advocate for the rights of

immigrants generally and as the leader of a network

of pro bono attorneys who regularly represent immigrants.

The American Immigration Lawyers Association

(“AILA”) is a national association with more than

15,000 members throughout the United States, including lawyers and law school professors who practice and

teach in the field of immigration and nationality law.

AILA seeks to advance the administration of law pertaining to immigration, nationality, and naturalization; to cultivate the jurisprudence of the immigration

laws; and to facilitate the administration of justice and

elevate the standard of integrity, honor, and courtesy

1 The parties have granted consent to the filing of this brief.

Under Supreme Court Rule 37.6, amici curiae state that no counsel for a party authored this brief in whole or in part, and no persons other than amici curiae and their counsel made any monetary contribution intended to fund the preparation and submission of this brief.

of those appearing in a representative capacity in immigration and naturalization matters. AILA’s members practice regularly before the Department of

Homeland Security (“DHS”), immigration courts, and

the Board of Immigration Appeals (“BIA”), as well as

before the United States District Courts, Courts of Appeals, and this Court.

INTRODUCTION AND

SUMMARY OF THE ARGUMENT

With the ever-increasing use of administrative regulations to govern individual and corporate conduct and

confer and/or limit rights, various rules requiring judicial deference to those regulations have also been increasingly criticized by Members of this Court, judges

of the lower federal courts, and academics. The Court

has sensibly responded to this groundswell of criticism

by adding to its plenary docket for this Term several

implicating a handful of these deference rules: Gundy

v. United States, 138 S. Ct. 1260 (2018) (mem.) (No.

17-6086) (argued Oct. 2, 2018) (whether the federal

Sex Offender Registration and Notification Act’s delegation of authority to the attorney general to issue regulations violates the non-delegation doctrine); PDR

Network, LLC v. Carlton & Harris Chiropractic Inc.,

139 S. Ct. 478 (2018) (mem.) (No. 17-1705) (to be argued Mar. 25, 2019) (whether the Hobbs Act requires

a federal court to accept the Federal Communication

Commission’s legal interpretation of the Telephone

Consumer Protection Act); and this case, which asks

whether the Court should overrule the doctrine that

makes an agency’s interpretation of its own ambiguous

regulation “controlling unless ‘plainly erroneous or inconsistent with the regulation,’” Auer v. Robbins, 519

U.S. 452, 461 (1997) (expanding on the standard originally articulated by Bowles v. Seminole Rock & Sand

Co., 325 U.S. 410, 414 (1945)).

Of the various deference rules, none has created as

much mischief as the Auer doctrine and, therefore, of

the various cases currently before the Court implicating deference to agencies, no case is as important as

this one. As Petitioner has explained, Auer deference

permits administrative “agencies to circumvent the

critical requirements of the APA,” adds “intolerable

unpredictability into the legal system,” and is “incompatible with the basic principle that the one who

makes the law should not also interpret it.” Pet’r Br.

25-26. Amici agree.

This mischief is not merely theoretical. Through

“subregulatory” interpretation, agencies can change

binding law “based on nothing more than a brief filed

in court, a letter posted on a website, or an internal

memorandum sent to agency staff.” Id. at 21, 52; see,

e.g., Talk Am., Inc. v. Mich. Bell Tel. Co., 564 U.S. 50,

59 (2011) (“[W]e defer to an agency’s interpretation of

its regulations, even in a legal brief, unless the interpretation is ‘plainly erroneous or inconsistent with the

regulation[s].’” (quoting Chase Bank USA, N.A.

v. McCoy, 562 U.S. 195, 208 (2011))).

Part I of this brief explains why amici agree with Petitioner that this Court should overrule Auer. But Part

I also articulates an alternative basis for overruling

Auer, without overruling Seminole Rock. In particular,

Part I explains how, read carefully, Seminole Rock was

a straightforward application of the factors articulated

by this Court months earlier in Skidmore v. Swift

& Co., 323 U.S. 134 (1944). Seminole Rock (and its

progeny for decades thereafter) recognized that courts

should defer to agency interpretations only if those interpretations were valid readings of the regulation,

consistent with prior agency interpretations, and took

into consideration reliance interests. Auer should be

overruled, therefore, not because it reaffirmed Seminole Rock, but because it severed Seminole Rock deference from its original anchoring in the Skidmore

framework that helped guarantee notice and prevent

arbitrariness in rulemaking.

Part II explains the practical problems that Auer has

wrought by compelling deference to diverse subregulatory interpretations offered in a host of different formats (from regulatory preambles to non-binding internal memoranda to non-precedential decisions from

quasi-judicial adjudicators) in all kinds of regulatory

contexts. This, in turn, as Part II also illustrates, has

left a trap for the unwary, requiring regulated parties

to hunt for relevant subregulatory guidance and, if

they are lucky to find it, hope that the agency will continue to adhere to it.

Finally, because the greatest number of requests by

the government for Auer deference come in immigration cases arising from the BIA, Part III analyzes the

circumstances under which the courts of appeals will

grant Auer deference to BIA decisions (including nonprecedential, single-member decisions), and uses that

analysis to illustrate why granting Auer deference to

quasi-judicial agencies is particularly problematic.

ARGUMENT

I. THE COURT SHOULD OVERRULE AUER

BECAUSE IT EXCEEDS SEMINOLE ROCK

PRINCIPLES.

As Petitioner has explained, Auer is incompatible

with the Administrative Procedure Act because it allows agencies to issue subregulatory interpretations

that bind the regulated public and the courts, but

without any of the APA’s procedural safeguards. Pet’r

Br. 26-33. As a result of that opportunity for agencies

to (sub)regulate without public notice and comment,

Auer has also injected intolerable unpredictability by

inviting the promulgation of vague regulations and

then compelling judicial deference to their subsequent,

less-formal clarifications. Pet’r Br. 37-40. This, in turn,

has created serious separation-of-powers problems by

vesting the power to interpret vague regulations in the

same branch of government that promulgated them

while simultaneously curtailing the courts’ obligation

to independently interpret the law. Pet’r Br. 43-45.

Amici agree with these rationales and believe them

sufficient to overrule Auer. But amici also would like

to put before the Court an alternative basis for overruling Auer that focuses on a key, yet largely overlooked, distinction between Auer and Seminole Rock

itself.

A careful review of the doctrinal context in which

Seminole Rock was decided reveals that it originally

had a far more modest and bounded significance that

this Court recognized in the decades after Seminole

Rock, but that the Auer Court did not sufficiently appreciate. The real problem with Auer was therefore not

so much that it followed or reaffirmed Seminole Rock,

but that it took one piece of dicta from Seminole Rock

out of its larger doctrinal and historical context. In doing so, it announced a rule of deference to agency interpretations of regulations far more sweeping, categorical, and generous than Seminole Rock had originally recognized.

In short, Seminole Rock is best read in light of the

framework for according weight to agency interpretations announced by the unanimous Court just six

months earlier in Skidmore, 323 U.S. 134. See generally Jeffrey A. Pojanowski, Revisiting Seminole Rock,

16 Geo. J. L. & Pub. Pol’y 87 (2018). On December 4,

1944, Justice Jackson, in writing for the Skidmore

Court, observed that courts may give weight to agency

interpretations on a case-by-case basis depending

upon “the thoroughness evident in its consideration,

the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors

which give it power to persuade, if lacking power to

control.” Skidmore, 323 U.S. at 140. If agency interpretations (1) accorded well with the text of the regulation

and demonstrated thorough reasoning and validity,

(2) were consistent with prior agency determinations,

and (3) provided adequate notice to regulated entities

and considered their reliance interests, then courts

would give those interpretations weight and defer to

them. On June 4, 1945, in Seminole Rock, in an 8-1

decision, the Court did not silently repudiate the

larger framework that it had unanimously crafted six

months earlier and announce a new rule of unquestioning deference to agency interpretations. Rather,

Seminole Rock effectively applied the Skidmore framework to the controversy at hand, and for decades thereafter, the Court applied that bounded Skidmore framework when it was asked to defer to agency interpretations of their own regulations.

Most attention to Seminole Rock focuses on the famous statement that “the ultimate criterion is the administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation.” 325 U.S. at 414. But that

statement is dicta; it did not form the basis for the

Court’s decision in Seminole Rock. Instead, the operative (though less sonorous) sentence that explained the

basis for the Court’s decision was: “Our reading of the

language of Section 1499.163(a)(2) of Maximum Price

Regulation No. 188 and the consistent administrative

interpretation of the phrase ‘highest price charged

during March, 1942’ thus compel the conclusion that

respondent’s highest price charged during March for

crushed stone was 60 cents per ton, since that was the

highest price charged for stone actually delivered during that month.” Id. at 418 (footnote omitted). As reflected by that explanation, the Court considered several of the Skidmore factors in according weight to the

agency’s interpretation.

The Seminole Rock Court first considered the validity of the agency’s interpretation by carefully reading

what it called “the plain words” of the text of the regulation itself: “Our only tools, therefore, are the plain

words of the regulation and any relevant interpretations of the Administrator.” Id. at 414. The Court

added that, in reading the regulation on its own, it

might take into consideration “[t]he intention of Congress or the principles of the Constitution.” Id. And the

Court independently read those words of the regulation and arrived at its own judgment of what it meant:

“As we read the regulation * * * rule [i] clearly applies

to the facts of this case, making 60 cents per ton the

ceiling price for respondent’s crushed stone.” Id. at

415.

Only after assuring itself that the agency comported

well with the regulation’s text did the Court then look

at the nature of the guidance documents issued by the

agency. And there it focused on the consistency and

notice provided by the agency’s interpretations. It underlined the fact that the interpretive bulletin issued

by the Administrator had come out “concurrently” with

the regulation itself. Id. at 417. It observed that the

bulletin, entitled “What Every Retailer Should Know

About the General Maximum Price Regulations” was

made broadly available to manufacturers, wholesalers, and retailers. Id. It attributed significance to the

fact that the agency’s position had “uniformly been

taken” by the Office of Price Administration “in the

countless explanations and interpretations given to inquirers affected by this type of maximum price determination.” Id. at 417-18. And it grappled with, and disposed of as factually irrelevant, purported examples of

agency inconsistency concerning its interpretation

provided by the respondent in the case. Id. at 418 n.9.

Seminole Rock thus applied the factors laid out in

Skidmore before according weight to the agency’s interpretation of its own regulation. Despite the dicta,

the Court did not blindly defer to the agency’s interpretation of its own regulation. Rather, it first performed a searching, extended examination of the regulation’s text on its own. Id. at 414-17. And when it

looked at the agency’s interpretation of the regulation,

it credited it only because it had been consistent with

prior agency statements, had been issued concurrently

with the regulation itself, and had been promulgated

publicly and broadly. It is then no surprise to learn

that the government’s brief in Seminole Rock, which

Justice Murphy largely followed in drafting the decision, cited Skidmore and argued that “the language of

the regulation compels the construction placed upon it

by the Price Administrator” which, since the beginning, had been “consistently and repeatedly reaffirmed” in “[m]illions upon millions of individual

transactions.” Brief for the Petitioner, at 18, 20-21,

Seminole Rock, 325 U.S. 410 (No. 914); see also Aditya

Bamzai, Henry Hart’s Brief, Frank Murphy’s Draft,

and the Seminole Rock Opinion, Yale J. Reg.: Notice

& Comment (Sept. 12, 2016), http://yalejreg.com/nc/

henry-harts-brief-frank-murphys-draft-and-the-seminole-rock-opinion-by-aditya-bamzai/.

This Court’s decisions in the decades after Seminole

Rock provide additional evidence that it was not the

watershed decision that it has occasionally been made

out to be. In the first two decades between 1945 and

1965, the Court cited Seminole Rock only once (in dissent), and when the Court did cite it, the Court often

indicated that it stood for the rule that agency interpretations would be accorded deference only if they

were consistent with prior interpretations, complied

with notice requirements, and did not interfere with

reliance interests.

Specifically, Justice Reed first cited Seminole Rock

along with several other cases in his dissent in Peters

v. Hobby, 349 U.S. 331 (1955), for the proposition that

a “reasonable interpretation promptly adopted and

long-continued” by the President and an administrative agency should be respected by the courts. Id. at

355. In the next citation in Udall v. Tallman, 380 U.S.

1 (1965), the Court deferred to the Secretary of the Interior’s interpretation of two executive orders, citing

the fact that “the Secretary has consistently construed

both orders not to bar oil and gas leases; moreover, this

interpretation has been made a repeated matter of

public record. While the Griffin leases and others located in the Moose Range have been developed in reliance upon the Secretary’s interpretation, respondents

do not claim to have relied to their detriment upon a

contrary construction.” Id. at 4. In Ehlert v. United

States, 402 U.S. 99 (1971), after concluding that the

regulation contained some ambiguous language, the

Court cited Seminole Rock for the rule that that “we

are obligated to regard as controlling a reasonable,

consistently applied administrative interpretation if

the Government’s be such.” Id. at 105. In Northern Indiana Public Service Co. v. Porter County Chapter of

Izaak Walton League of America, Inc., 423 U.S. 12

(1975) (per curiam), the Court cited Seminole Rock and

deferred to an agency interpretation because it was

“supported by the wording of the regulations and is

consistent with prior agency decisions.” Id. at 14. In

Ford Motor Credit Co. v. Milhollin, 444 U.S. 555

(1980), the Court cited Seminole Rock in upholding a

Federal Reserve Board staff interpretation in part because the staff had “consistently construed the statute

and regulations.” Id. at 557. And in Mullins Coal Co.

of Virginia v. Director, Office of Workers’ Compensation Programs, 484 U.S. 135 (1987), the Court upheld

under Seminole Rock the Secretary of Labor’s interpretation regarding the burden of proof needed to invoke

a presumption of eligibility for black lung benefits, because it had been “with one exception, consistently

maintained through Board decisions” and had been a

“routine” feature of the standard of review in the

courts of appeals. Id. at 159-60.

The precise date when the dicta in Seminole Rock

came loose from the background doctrinal framework

of Skidmore is a matter of some scholarly debate. See

Sanne H. Knudsen & Amy J. Wildermuth, Unearthing

the Lost History of Seminole Rock, 65 Emory L.J. 47

(2015). But as these cases indicate, this Court in Seminole Rock and for decades thereafter applied Seminole

Rock deference against a background assumption that

the Skidmore factors of validity, agency consistency,

and notice must first be considered and met before a

court should accord deference to agency interpretations of regulations.

In Auer, however, the last threads of connection between Skidmore and Seminole Rock were finally severed. The Auer Court quoted the dicta from Seminole

Rock and expressly declared that to be a “deferential

standard,” easily met even in a case where the agency

announced its interpretation of the regulation for the

first time in an amicus brief. “Because the salary-basis

test is a creature of the Secretary [of Labor]’s own regulations, his interpretation of it is, under our jurispru-

dence, controlling unless ‘plainly erroneous or inconsistent with the regulation.’” 519 U.S. at 461 (citing

Seminole Rock, 325 U.S. at 414).

The trouble with Auer, then, is that it ignored the

preconditions that this Court had recognized in Seminole Rock for deferring to agency interpretations. It retained the punchline, but dropped the indispensable

setup. This failing in Auer is not just a matter of deficient legal history, but of significant practical, realworld import because the preconditions it ignored were

essential to fairness and due process in rule-making.

Auer departed from the baseline requirement in Seminole Rock that courts defer to agency interpretations

only when they are at least persuasive in their own

right, consistent with prior agency interpretations,

and have been officially and widely published, such

that all regulated entities are on notice from the start.

Shorn of these basic requirements, Auer deference liberates administrative agencies to be as arbitrary as

they want to be. They can provide a binding interpretation years after a regulation is promulgated that is

not the best reading of the regulation, departs sharply

from previous agency interpretations, and is offered in

anticipation of (or during) litigation with regulated

parties who relied on a previous agency interpretation

(or just the most natural reading of the regulation itself), yet still prevail in court.

Such a permission slip removes transparency and

accountability from the rule-making process. Because

subregulatory interpretations are not subject to the

public notice and comment requirement under the

APA, 5 U.S.C. § 553(b)(A), the only step along the process at which to pressure-test the soundness of these

interpretations is at the judicial review stage. But

Auer deference effectively defangs that stage, enabling

agencies to survive judicial review with a mere showing that their latest interpretation is not “plainly erroneous.” Arranged thus, the rulemaking process removes the burden from agencies critical to ensuring

transparency and accountability to either “pay now” at

the notice or comment period or “pay later” at the judicial review stage to show that their interpretations

are valid, consistent, and take reliance interests into

account.

Affording deference to such subregulatory interpretations under these conditions promotes arbitrary government and tends to harm all regulated persons—corporate and individual, and among individuals, particularly our nation’s immigrant community that amici

serve.

II. THE MANY DISPARATE FORMS OF

SUBREGULATORY INTERPRETATION TO

WHICH AUER DEFERENCE APPLIES

HARM THE REGULATED PUBLIC.

As Petitioner correctly observes, “Auer allows an

agency to change the meaning of its regulations (including reversal of pre-existing positions) * * * regardless whether the new interpretation is the best one.”

Pet’r Br. 24. With scarcely any warning, opportunity

for public participation, or political accountability, administrative agencies can change course midstream.

Id. at 22; see also Perez v. Mortg. Bankers Ass’n, 135

S. Ct. 1199, 1221 (2015) (Thomas, J., concurring in the

judgment) (explaining that Auer deference “allows

agencies to change the meaning of regulations at their

discretion and without any advance notice to the parties”).

Amici agree. Putting aside the incentives and subjective motivations of agency rule-makers, amici direct

this Court’s attention to the profoundly harmful ways

that Auer deference impacts regulated entities and the

public at large. Auer permits agencies to dramatically

change the rules of the game with impunity, while

members of the regulated public—individuals, small

businesses, and corporations—are deprived of advance

warning and regulatory stability. Under the shadow of

Auer, entities and individuals have difficulty predicting which rules will apply when agencies issue novel,

subregulatory interpretations that function as if they

have the force of law. See Perez, 135 S. Ct. at 1211-12

(Scalia, J., concurring in the judgment) (“[J]udge-made

doctrines of deference * * * have revolutionized the import of interpretive rules’ exemption from notice-andcomment rulemaking” because “[a]gencies may now

use these rules not just to advise the public, but also

to bind them.”).

A. A strong form of Auer deference does not

account for the many different forms of

subregulatory interpretation to which

courts have applied it.

Subject to two exceptions recently adopted by this

Court,2 Auer purports to make an agency’s interpretation of its own ambiguous regulation “controlling unless ‘plainly erroneous or inconsistent with the regulation.’” 519 U.S. at 461. The Court made that broadly

phrased holding in the context of resolving a dispute

over the meaning of the Department of Labor’s regulations regarding an employee’s exemption from overtime pay. Id. at 455. The Court deferred to the Secretary of Labor’s interpretation set forth “in an amicus

2 Gonzales v. Oregon, 546 U.S. 243, 257 (2006) (holding that

Auer deference is inappropriate for agency interpretation of regulation that merely parrots the statutory text), and Christopher

v. SmithKline Beecham Corp., 567 U.S. 142, 158-59 (2012) (denying Auer deference to agency interpretation of regulation that

failed to provide proper notice to regulated entities).

brief filed at the request of the Court” because the regulation at issue, “the salary-basis test,” “is a creature

of the Secretary’s own regulations.” Id. at 461. In fact,

as petitioner notes (Pet’r Br. 9, 29-30), this Court has

also applied Auer deference to an “internal” agency

memorandum that “appears to have [been] written in

response” to the litigation at issue, see Long Island

Care at Home, Ltd. v. Coke, 551 U.S. 158, 171 (2007);

see also Chase Bank, 562 U.S. at 197; Coeur Alaska,

Inc. v. Se. Alaska Conservation Council, 557 U.S. 261,

278 (2009), and to private letters issued by an agency

during the pendency of litigation, Thorpe v. Hous.

Auth. of Durham, 393 U.S. 268, 276 & nn.22-23 (1969).

Together, the Court’s broad phrasing in Auer, coupled with its willingness to defer to subregulatory interpretations of which parties subject to the regulation

(no less, the public at large) lacked notice have sent a

strong signal to the lower courts that subregulatory interpretations meeting the “plainly erroneous or inconsistent” standard must receive controlling deference

“no matter how informal the pronouncement in which

the agency advances its interpretation.” Go v. Holder,

744 F.3d 604, 611 (9th Cir. 2014) (Wallace, J., concurring).

Accordingly, requests by the government for Auer

deference have not been made just with respect to the

types of subregulatory interpretations that this Court

has seen. As a recent study shows, the courts of appeals have applied Auer to: (1) an agency’s appellate

litigation position embodied in its own party brief;3

3 See, e.g., Drake v. FAA, 291 F.3d 59, 68 (D.C. Cir. 2002) (applying Auer deference to the Federal Aviation Administration’s

interpretation of its own regulation advanced during litigation

where the position was not inconsistent with the agency’s prior

statements); Bigelow v. Dep’t of Def., 217 F.3d 875, 878 (D.C. Cir.

(2) so-called “non-legislative” or “publication” rules issued by agencies in letters, manuals, memoranda,

handbooks, program statements, bulletins, guidance

documents, and classifications;4 (3) informal adjudications;5 (4) non-textual interpretations;6 (5) regulatory

2000) (finding for the Department of Defense and giving Auer deference to “the interpretation advanced in the Department’s

brief”).

4 See, e.g., Siskiyou Reg’l Educ. Project v. U.S. Forest Serv., 565

F.3d 545, 548, 553-54 (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); Belt v. EmCare, Inc., 444 F.3d 403, 415-16 (5th Cir. 2006) (applying Auer

deference to informal Department of Labor regulatory interpretations contained in a nonbinding opinion letter, a Field Operations Handbook, and an amicus brief); Archuleta v. Wal-Mart

Stores, Inc. (In re Wal-Mart Stores, Inc., Fair Labor Standards

Act Litig.), 395 F.3d 1177, 1184-85 (10th Cir. 2005) (applying Auer

deference to the Department of Labor’s opinion letters that explain how regulations related to the Fair Labor Standards Act

apply in particular circumstances); LaFleur v. Whitman, 300 F.3d

256, 277 (2d Cir. 2002) (applying Auer deference to the Environmental Protection Agency’s interpretation and application of the

“Standard Industrial Classification Manual” in determining

whether heightened permitting requirements applied to a municipal waste facility under the Clean Air Act).

5 See, e.g., Intermodel Techs., Inc. v. Peters, 549 F.3d 1029, 1031

(6th Cir. 2008) (applying Auer deference to uphold the National

Highway Traffic Safety Administration’s denial of a tractortrailer manufacturer’s application for temporary exemption from

a tractor-trailer safety standard).

6 See, e.g., Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556

F.3d 177, 213-14 (4th Cir. 2009) (applying Auer deference to the

U.S. Army Corps of Engineers’ issuance of four permits allowing

coal mining operations based on a history of “consistent administrative practice” and consistent reliance on Environmental Protection Agency guidance).

preambles;7 (6) litigation positions before administrative adjudications;8 (7) non-precedential adjudications, such as unpublished single-member decisions of

the Board of Immigration Appeals;9 (8) precedential

adjudications;10 (9) hybrid orders,11 and (10) briefs of

non-government parties asserting an agency’s prior interpretation.12 See generally William Yeatman, Note,

An Empirical Defense of Auer Step Zero, 106 Geo. L.J.

515, 536-43 (2018) (describing forms of subregulatory

7 See, e.g., Halo v. Yale Health Plan, 819 F.3d 42, 53 (2d Cir.

2016) (applying Auer deference to preamble to regulation prescribing ERISA benefits claims procedures).

8 See, e.g., Ass’n of Bituminous Contractors, Inc. v. Apfel, 156

F.3d 1246, 1252 (D.C. Cir. 1998) (applying Auer deference to the

Commissioner of the Social Security Administration’s interpretation of the Coal Act where the Commissioner “consistently” interpreted the Act the same way at the administrative level).

9 See Part III(A), infra.

10 See Part III(A), infra; see also, e.g., Excel Corp. v. U.S. Dep’t

of Agric., 397 F.3d 1285, 1296 (10th Cir. 2005) (deferring to a Department of Agriculture Judicial Officer’s interpretation of a regulation under Auer since the interpretation was neither plainly

erroneous nor inconsistent with prior determinations).

11 See,

e.g., Pub. Lands for the People, Inc. v. U.S. Dep’t of

Agric., 697 F.3d 1192, 1199 (9th Cir. 2012) (applying Auer deference to a Forest Service decision, based on a 45-day comment period, that limited motor vehicle access on certain roads in the El

Dorado National Forest).

12 See, e.g., W. Radio Servs. Co. v. Qwest Corp., 678 F.3d 970,

984-85 (9th Cir. 2012) (applying Auer deference to the Federal

Communications Commission’s interpretation of the term “interconnection” in a suit between a commercial mobile radio service

and a local carrier challenging the approval of an interconnection

agreement by the Oregon Public Utilities Commission); Wal-Mart

Stores, 395 F.3d at 1184-85 (applying Auer deference to the Department of Labor’s opinion letters in a suit brought by pharmacists against their employer for violations of the Fair Labor

Standards Act).

interpretation); id. at 545-46 tbl.2 (presenting data on

the application of Chevron, Auer, and Skidmore deference to these various forms of subregulatory interpretation).

In fact, because Auer’s potential applicability is so

pervasive, one recent empirical study counted 429 examples of the courts of appeals applying Auer in published (never mind unpublished) decisions between

1993 and 2013, with the government prevailing in 74%

of those cases.13 Id. at 519, 536 n.124. And because

agency requests for Auer deference arise most in labor

and employment and immigration cases—in particular, immigration cases arising from the BIA, see Cynthia Barmore, Auer in Action: Deference After Talk

America, 76 Ohio St. L.J. 813, 830-31 & tbl.3 (2015)—

the issue is of utmost important to amici.

B. The evils of Auer are most notable in

their effects on the regulated public.

Precisely because Auer applies to so many disparate

forms of subregulatory interpretation, the (sub)regulated public lacks recourse to a stable body of rules.

See Perez, 135 S. Ct. at 1224 (Thomas, J., concurring

in the judgment) (“Only the text of a regulation goes

through the procedures established by Congress for

agency rulemaking,” and “it is that text on which the

public is entitled to rely.”). To conform their conduct,

13 Apparently emboldened by its success rate, the government

has even claimed that one agency’s interpretation of another’s

ambiguous regulation is entitled to deference. See, e.g, L.D.G.

v. Holder, 744 F.3d 1022, 1028-29 (7th Cir. 2014) (rejecting the

request by the Department of Justice’s Office of Immigration Litigation for Auer deference to the interpretations by the BIA—

another component of the Justice Department—of DHS’s U-Visa

regulations).

regulated parties often must retain experienced counsel, or at minimum comb through poorly organized

government websites or have access to a legal-research

database for potentially relevant guidance (assuming

it is even in the public domain). Then, regulated parties must guess whether administrative officials will

continue to apply those policies as political winds

change. See Pet’r Br. 39 (“Such policy shifts often occur

when there is a change in Administrations.”). Auer deference thus creates myriad traps for the unwary

across most—if not all—federally regulated contexts,

and, as amici have learned from experience, particularly undermines “efficiency, fairness, and predictability” in immigration law. Mellouli v. Lynch, 135 S. Ct.

1980, 1987 (2015).

Consider, for instance, subregulatory interpretations concerning parole and deferred action. In November 2013 and 2014, the DHS and U.S. Citizenship

& Immigration Service (“USCIS”) adopted explicit

subregulatory memoranda governing parole considerations for family members of individuals enlisted in

the U.S. Armed Forces. See U.S. Dep’t of Homeland

Sec., Families of U.S. Armed Forces Members and Enlistees (2014), https://www.dhs.gov/sites/default/files/

publications/14_1120_memo_parole_in_place.pdf;

U.S. Citizenship & Immigration Servs., U.S. Dep’t of

Homeland Sec., PM-602-0091, Policy Memorandum:

Parole of Spouses, Children and Parents of Active

Duty Members of the U.S. Armed Forces or Selected

Reserve of the Ready Reserve and the Effect of Parole

on Inadmissibility under INA § 212(a)(6)(A)(i) (2013),

https://www.uscis.gov/sites/default/files/USCIS/Laws/

Memoranda/2013/2013-1115_Parole_in_Place_Memo

_.pdf. Although those policies remain officially in effect, see U.S. Citizenship & Immigration Servs., Discretionary Options for Military Members, Enlistees and

Their Families, https://www.uscis.gov/military/

discretionary-options-military-members-enlisteesand-their-families (last visited Jan. 31, 2019), Executive Branch officials have declined to apply their own

subregulatory policies as written. See Tara Copp, As

Many as 11,800 Military Families Face Deportation Issues, Group Says, Mil. Times, https://www.military

times.com/news/your-military/2018/04/01/as-many-as11800-military-families-face-deportation-issues-group

-says/ (Apr. 1, 2018) (“An earlier ‘parole in place’ program that was previously championed by Vice President Mike Pence to give relief to military families is no

longer being utilized due to stricter enforcement of deportation proceedings under [President] Trump.”).

As another example, consider subregulatory policy

surrounding Form I-693 (a document used for reporting medical-examination results to USCIS). Under 8

U.S.C. § 1182(a)(1), any non-citizen “who is determined * * * to have a communicable disease of public

health significance * * * [is] ineligible to receive visas

and ineligible to be admitted to the United States.”

Such visa applicants and applicants for admission

must submit a medical examination—using Form I693—from a “civil surgeon.” See 42 C.F.R. § 34.2(c).

Before 2002, Form I-693 was considered valid, so long

as it was submitted promptly; if adjudication was delayed, the form’s validity was automatically extended.

See U.S. Citizenship & Immigration Servs., U.S. Dep’t

of Homeland Sec., PA-2014-005, Policy Alert: Validity

Period of the Medical Certification on the Report of

Medical Examination and Vaccination Record (Form I693) (2014), https://www.uscis.gov/policymanual/

Updates/20140530-I-693Validity.pdf [hereinafter

2014 Policy Alert]. That approach was not dictated by

statute or regulation, as “USCIS historically has es-

tablished the validity period [for Form I-693] by policy.” U.S. Citizenship & Immigration Servs., U.S.

Dep’t of Homeland Sec., PA-2018-09, Policy Alert: Validity of Report of Medical Examination and Vaccination Record (Form I-693) (2018), https://www.uscis.gov

/policymanual/Updates/20181016-I-693Validity.pdf.

But in 2014, USCIS suddenly changed its subregulatory “policy” to make Form I-693 expire after one

year—and, in doing so, the agency was not obliged to

solicit public comment. See 2014 Policy Alert, supra.

As amici could have predicted, adjudicative delays ensued and Form I-693’s expired in numerous cases. Admission was delayed while families and businesses obtained new medical examinations (which generally

cost hundreds of dollars per case). Without warning,

the agency’s subregulatory policy imposed significant

costs on countless families and businesses.

These examples confirm that “Auer deference should

be set aside because it is fundamentally at war with

basic principles of predictability and public notice.”

Pet’r Br. 36-37. Regulatory deference may very well

motivate those who promulgate regulations to “speak

vaguely and broadly.” See Decker v. Nw. Envtl. Def.

Ctr., 568 U.S. 597, 620 (2013) (Scalia, J., concurring in

part and dissenting in part). But Auer’s true sin is its

impact on the regulated, not the regulator. In this subregulatory world, where agency discretion eclipses

fundamental fairness, rights will often rise and fall

with the quality of counsel—not the merits of a case.

Whatever the fate of Chevron and the broader administrative state, Auer serves only to insulate from judicial review opaque rules promulgated by unaccountable officials according to unknowable methods.

III. AUER DEFERENCE IS PERNICIOUS

WHERE QUASI-JUDICIAL AGENCIES LIKE

THE BIA INTERPRET REGULATIONS

THROUGH ADJUDICATION.

Auer’s flaws apply equally, if not with greater force,

to quasi-judicial agencies that interpret regulations

through case-by-case adjudication.14 This Court has

long recognized that, “in administrative proceedings of

a quasi-judicial character,” liberty must be “protected

by the rudimentary requirements of fair play.” Morgan

v. United States, 304 U.S. 1, 14-15 (1938). Cloaked in

judicial garb, however, an administrative agency can

conduct binding adjudications that “change the meaning of regulations * * * without any advance notice to

the parties.” Perez, 135 S. Ct. at 1221 (Thomas, J., concurring in the judgment); see also Decker, 568 U.S. at

620 (Scalia, J., concurring in part and dissenting in

part) (“[W]hen an agency interprets its own rules * * *

the power to prescribe is augmented by the power to

interpret.”). Moreover, Auer deference shields the

agency’s purported power to “say what its own rules

mean” from plenary judicial review. John F. Manning, Constitutional Structure and Judicial Deference

to Agency Interpretations of Agency Rules, 96 Colum.

L. Rev. 612, 654 (1996).

Amici submit that this regime is incompatible with

the “cherished judicial tradition embodying the basic

concepts of fair play,” Morgan, 304 U.S. at 22, particularly in the immigration context. First, at the most

basic level, quasi-judicial agencies are not properly

14 The term “quasi-judicial” refers to “an executive or administrative official’s adjudicative acts.” Quasi-Judicial, Black’s Law

Dictionary (10th ed. 2014); see also Humphrey’s Ex’r v. United

States, 295 U.S. 602, 629 (1935) (discussing Congress’ authority

to create quasi-legislative and quasi-judicial agencies).

constituted to exercise judicial power. Second, and relatedly, quasi-judicial agencies are not better equipped

to interpret regulations, particularly considering fiscal

and operational constraints within the Executive

Branch. Third, the severity of deportation, as a punishment, counsels against abandoning fulsome judicial

review of regulatory interpretations. Amici illustrate

these flaws through an examination of the BIA, which

underscores why subregulatory interpretation

through quasi-judicial adjudication should be reviewed under traditional Skidmore principles.

A. Most circuits give Auer deference to the

BIA’s interpretation of ambiguous regulations.

The Immigration and Nationality Act (“INA”), 8

U.S.C. § 1101 et seq., and its implementing regulations, 8 C.F.R. § 100.1 et seq., designate the process for

removing non-citizens from the United States. Generally, Immigration Judges (“IJs”) conduct initial removal proceedings and the BIA reviews appeals from

removal orders. See 8 U.S.C. § 1229a(a)(1), (c)(5). According to the Department of Justice (“DOJ”), the majority of BIA appeals involve orders of removal and applications for relief from removal.15

The BIA is a component of the DOJ’s Executive Office for Immigration Review, and is considered the

highest administrative body for interpreting immigration law. See Bd. of Immigration Appeals, U.S. Dep’t

of Justice, Board of Immigration Appeals Practice

Manual, ch. 1.2(a)-(b), https://www.justice.gov/eoir/

page/file/1103051/download (last updated Oct. 16,

15 See Exec. Office for Immigration Review, U.S. Dep’t of Justice, Board of Immigration Appeals, https://www.justice.gov/eoir/

board-of-immigration-appeals (last visited Jan. 31, 2019).

2018) [hereinafter BIA Practice Manual]. The BIA generally does not conduct courtroom proceedings or hear

oral arguments.16 Decisions are rendered either by a

single Board Member, a three-member panel, or,

rarely, the full Board. Id., ch. 1.3(a). The BIA’s orders

are final, unless stayed, modified, rescinded, or overruled by the Board, the Attorney General, or a federal

court. Id. ch. 1.4(d) (citing 8 C.F.R. § 1003.1(d)(7), (g)).

Decisions released in “published” form constitute binding precedent for the Board and the Immigration

Courts. Id. ch. 1.4(d)(i) (citing 8 C.F.R. § 1003.1(g)).

But the vast majority of BIA decisions are unpublished

and, while binding on the parties, are not considered

precedent. Id. ch. 1.4(d)(i)-(ii).

Nearly every circuit has held that the BIA is entitled

to Auer deference when interpreting ambiguous immigration regulations, unless “plainly erroneous or inconsistent with the regulation.” See Auer, 519 U.S. at

461. As the Sixth Circuit has recently explained,

“we * * * afford substantial deference to [the BIA’s] interpretation of the INA and accompanying regulations,” the latter of which “are controlling unless

plainly erroneous or inconsistent with the regulation.”

Hernandez-Perez v. Whitaker, 911 F.3d 305, 312 (6th

Cir. 2018).17

16 See note 15, supra.

17 The Second, Third, Fourth, Fifth, Seventh, Eighth, Ninth,

Tenth, and Eleventh Circuits agree. See, e.g., Gomez v. Lynch,

831 F.3d 652, 655-56 (5th Cir. 2016); Maldonado v. Lynch, 786

F.3d 1155, 1164 (9th Cir. 2015) (en banc); Mansour v. Holder, 739

F.3d 412, 414 (8th Cir. 2014); Li Shan Chen v. U.S. Attorney Gen.,

672 F.3d 961, 965 n.2 (11th Cir. 2011) (per curiam); Kiorkis

v. Holder, 634 F.3d 924, 928 (7th Cir. 2011); Barnes v. Holder, 625

F.3d 801, 803-04 (4th Cir. 2010); Kaplun v. Attorney Gen., 602

F.3d 260, 265 (3d Cir. 2010); Perriello v. Napolitano, 579 F.3d 135,

Consider, for example, Zhang v. Holder, 617 F.3d

650 (2d Cir. 2010). There, the Second Circuit gave Auer

deference to the BIA’s interpretation of 8 C.F.R.

§ 1003.2(a)—a regulation governing the Board’s sua

sponte authority to reopen final removal proceedings.

In Matter of Armendarez-Mendez, 24 I. & N. Dec. 646,

660 (B.I.A. 2008), the BIA concluded that the so-called

“departure bar” deprived it of jurisdiction to consider

motions to reopen. Zhang, 617 F.3d at 652. Deferring

to that legal interpretation of Section 1003.2(d), the

Second Circuit held that the BIA’s reading was not

“plainly erroneous” and thus denied the petition for review. Id. The court explained that, although it was

“not without flaws,” the BIA’s legal “construction * * *

is entitled to deference.” Id. at 655. The court also felt

obliged to note that “the BIA’s construction [wa]s anything but airtight,” and restrained itself from

“creat[ing] an exhaustive list” of concerns. Id. at 660.

“Were we writing on a blank slate,” the court emphasized, “we might reach a different conclusion.” Id.18

A majority of circuits apply Auer deference even to

unpublished single-member BIA decisions.19 In the

Chevron context, courts find that in issuing un-

138 (2d Cir. 2009); Halmenschlager v. Holder, 331 F. App’x 612,

619 (10th Cir. 2009).

18 Such reluctant deference is not unique to the immigration

context. See, e.g., Qwest Corp. v. Colo. Pub. Utils. Comm’n, 656

F.3d 1093, 1101 (10th Cir. 2011) (reluctantly deferring to the

FCC’s amicus brief even though the court “would not necessarily

reach the same result if not required to defer”); Wal-Mart Stores,

395 F.3d at 1181-82 (deferring to the Department of Labor’s definition of “salary” expressed in opinion letters even though “we

may well have defined salary rather differently than the DOL”).

19 See Gourzong v. Attorney Gen., 826 F.3d 132, 136 & n.2 (3d

Cir. 2016) (describing split of authority and collecting cases).

published decisions, “the BIA is not exercising its authority to make a rule carrying the force of law, and

thus the opinion is not entitled to Chevron deference.”

Martinez v. Holder, 740 F.3d 902, 909-10 (4th Cir.

2014) (collecting cases); see also Dhuka v. Holder, 716

F.3d 149, 154-56 (5th Cir. 2013). Yet in the Auer context, many circuits find that “the BIA is entitled to significant deference when it * * * interprets an immigration regulation in a single-member, nonprecedential

opinion.” Gomez v. Lynch, 831 F.3d 652, 655 (5th Cir.

2016). They reason that, under Auer, “the agency’s interpretations, even if relatively informal * * *, are

given ‘controlling weight.’” Id. at 655-56; see also

Mansour v. Holder, 739 F.3d 412, 414, 417 (8th Cir.

2014) (extending “the deference afforded by * * * Auer”

to regulatory interpretation in an “unpublished BIA

decision”); Linares Huarcaya v. Mukasey, 550 F.3d

224, 227-30 (2d Cir. 2008) (per curiam) (extending

Auer deference to an unpublished decision, despite recognizing “the potential for redundancy in the BIA’s interpretation”).20

20 The Ninth Circuit disagrees. Lezama-Garcia v. Holder, 666

F.3d 518, 532 (9th Cir. 2011) (holding that a “one-member, nonprecedential, BIA order” should be given “no deference under

Auer as an agency interpretation of a regulation”). As explained,

most circuits have similarly declined to apply Chevron to unpublished BIA decisions. See Joseph v. Holder, 579 F.3d 827, 833

(7th Cir. 2009) (citing Quinchia v. U.S. Atty. Gen., 537 F.3d 1312,

1314 (11th Cir. 2008); Rotimi v. Gonzales, 473 F.3d 55, 57 (2d Cir.

2007); Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1012-13 (9th

Cir. 2006)).

B. Affording Auer deference to BIA adjudications is particularly problematic.

With this essential background in mind, amici submit that Auer deference is unjustified in the immigration context for at least three fundamental reasons.21

1. Our constitutional system requires federal courts

to “exercise independent judgment in determining that

a regulation properly covers the conduct of regulated

parties.” See Perez, 135 S. Ct. at 1219 (Thomas, J., concurring in the judgment). Auer short-circuits that safeguard, demanding, instead, that judges defer to agency

interpretations that are not plainly erroneous or otherwise inconsistent with the regulation. See Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 155

(2012). This deference doctrine therefore amounts to

“a transfer of the judge’s exercise of interpretive judgment to the agency.” See Perez, 135 S. Ct. at 1219

(Thomas, J., concurring in the judgment).

The BIA’s exercise of quasi-judicial power is no exception. While Board Members and IJs are considered

“independent” adjudicators, see BIA Practice Manual,

ch. 1.2(c), they are, doubtless, components of the Executive Branch housed within DOJ and subject to oversight by the Attorney General. Significantly, these Executive Branch officials lack the “structural protections for independent judgment adopted by the Fram-

21 Prior to deciding United States v. Mead Corp., 533 U.S. 218,

226-27 (2001) (holding that agency actions lacking requisite formality, including interpretive rules, do not warrant Chevron deference), the Court held that precedential BIA decisions interpreting the Immigration and Nationality Act would receive Chevron

deference. See INS v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999).

Amici submit that the Court may want to revisit that holding in

an appropriate case. The Court need not do so here, so amici do

not urge the Court to address the issue.

ers”—i.e., Article III’s life tenure and salary protections. See Perez, 135 S. Ct. at 1220 (Thomas, J., concurring in the judgment); Jason Dzubow, Former BIA

Chairman Paul W. Schmidt on His Career, the Board,

and the Purge (part 2), The Asylumist (Oct. 5, 2016),

https://www.asylumist.com/2016/10/05/former-biachairman-paul-w-schmidt-on-his-career-the-boardand-the-purge-part-2/ (explaining dismissal of BIA

members due to the Attorney General’s disagreement

with opinions). Thus, as the most basic level, the BIA

is “not properly constituted to exercise the judicial

power under the Constitution,” which suggests that

any “transfer of interpretive judgment raises serious

separation-of-powers concerns.” Perez, 135 S. Ct. at

1220.

2. Complicated and technical regulatory matters often require expertise, along with the exercise of “judgment grounded in policy concerns.” See Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994) (quoting

Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 697

(1991)). This confirms that agencies—not courts—

should promulgate regulations; but it says nothing

about “who should interpret regulations.” See Decker,

568 U.S. at 618 (Scalia, J., concurring in part and dissenting in part). Put another way: “[T]he purpose of

interpretation is * * * [n]ot to make policy, but to determine what policy has been made.” Id. Federal

judges are up to that task, often more so that administrative agencies. See Perez, 135 S. Ct. at 1222-23

(Thomas, J., concurring in the judgment) (citing Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (“It

is emphatically the province and duty of the judicial

department to say what the law is.”)).

Auer deference is accordingly at its nadir when regulatory interpretations do not reflect the agency’s “fair

and considered judgment on the matter in question.”

See SmithKline Beecham Corp., 567 U.S. at 155. Experience has taught that—given its crippling workload, inadequate funding, and ever-expanding backlog

of cases22—the BIA is not sufficiently equipped to “say

what its own rules mean.” Manning, supra, at 654.

Courts and commentators alike have recognized that,

in the immigration context, quasi-judicial adjudication

has “fallen below the minimum standards of legal justice.” Benslimane v. Gonzales, 430 F.3d 828, 829-30

(7th Cir. 2005). At points, the BIA has been deciding

cases at the rate of 7-10 minutes per Board Member,

per case. See Lisa Getter & Jonathan Peterson, Speedier Rate of Deportation Rulings Assailed, L.A. Times

(Jan. 5, 2003), http://articles.latimes.com/2003/

jan/05/nation/na-immig5 (cited in Kadia v. Gonzales,

501 F.3d 817, 820 (7th Cir. 2007)).23

22 The

backlog increased from approximately 212,000 cases

pending at the start of FY 2006, when the median pending time

for those cases was 198 days, to 437,000 pending cases at the start

of FY 2015, when the median pending time was 404 days. U.S.

Gov’t Accountability Office, GAO-17-438, Immigration Courts:

Actions Needed to Reduce Case Backlog and Long-Standing Management and Operational Challenges 22 (2017).

23 Criticism of the Board has been severe. See, e.g., Cruz Rendon v. Holder, 603 F.3d 1104, 1111 n.3 (9th Cir. 2010) (“We are

deeply troubled by the IJ’s conduct in this case, which exhibits a

fundamental disregard for the rights of individuals who look to

her for fairness.”); Wang v. Attorney Gen., 423 F.3d 260, 269 (3d

Cir. 2005) (“The tone, the tenor, the disparagement, and the sarcasm of the IJ seem more appropriate to a court television show

than a federal court proceeding.”); Mohammed v. Gonzales, 400

F.3d 785, 792 (9th Cir. 2005) (“Not only was the BIA’s opinion an

example of sloppy adjudication, it contravened considerable precedent.”); Galina v. INS, 213 F.3d 955, 958 (7th Cir. 2000) (“The

elementary principles of administrative law, the rules of logic,

and common sense seem to have eluded the [BIA] in this as in

other cases.”).

Yet, despite the BIA’s shortcomings (understandable

as they perhaps may be), Auer nevertheless compels

federal judges to afford significant deference to interpretations of ambiguous immigration regulations. And

as previously explained, some circuits have even extended Auer deference to single-judge, unpublished

BIA decisions. See, e.g., Gomez, 831 F.3d at 655;

Mansour, 739 F.3d at 414; Linares Huarcaya, 550 F.3d

at 227-30. That practice is misguided. The BIA’s informal adjudicatory processes do not live up to the “cherished judicial tradition.” See Morgan, 304 U.S. at 22.

As the Ninth Circuit correctly explained in LezamaGarcia v. Holder, 666 F.3d 518 (9th Cir. 2011), singlemember BIA orders are “non-precedential,” often neglect to “explain [their] reasoning,” and therefore fail

to “reflect the agency’s fair and considered judgment.”

Id. at 532; Auer, 519 U.S. at 462. Put simply: “Deference is earned; it is not a birthright.” See Kadia, 501

F.3d at 821.

3. Deportation is a “drastic measure,” comparable to

“banishment of exile.” Fong Haw Tan v. Phelan, 333

U.S. 6, 10 (1948). And often, this “particularly severe

penalty” will be more important to non-citizens than

“any potential jail sentence.” Lee v. United States, 137

S. Ct. 1958, 1968 (2017) (quoting Padilla v. Kentucky,

559 U.S. 356, 365, 368 (2010)). Recognizing the “grave

nature of deportation,” this Court has taken great care

when reviewing removal cases. See Jordan v. De

George, 341 U.S. 223, 231 (1951) (reviewing removal

provision under the void-for-vagueness doctrine); see

also Reno v. Flores, 507 U.S. 292, 306 (1993) (holding

that the Fifth Amendment entitles non-citizens to due

process in removal proceeding); INS v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987) (holding that ambiguities in deportation provisions should be construed in

favor of non-citizens). Likewise, the federal courts

have consistently tried to “promote efficiency, fairness,

and predictability” in immigration law. Mellouli, 135

S. Ct. at 1987.

But Auer deference compels judges to abandon fulsome checks on the severity of deportation. See Perez,

135 S. Ct. at 1221 (Thomas, J., concurring in the judgment) (“When courts refuse even to decide what the

best interpretation is under the law, they abandon the

judicial check.”). As previously explained, the majority

of BIA appeals concern removal orders and applications for relief from removal. The BIA’s interpretation

of an ambiguous regulation often will be outcome-determinative. See, e.g., Zhang, 617 F.3d at 660 (denying

petition for review, even though the BIA’s interpretation of regulation was “anything but airtight”). So long

as Auer remains good law, however, Article III judges

will be all-but-powerless to “serve as a ‘check’” on those

who administer and enforce the immigration laws. See

Perez, 135 S. Ct. at 1217 (Thomas, J., concurring in the

judgment).24

For these reasons, Auer deference should not apply

where quasi-judicial agencies interpret regulations

through adjudication—and particularly not with re-

24 When Auer deference applies, courts are necessarily precluded from construing regulatory ambiguities in favor of non-citizens. See Cardoza-Fonseca, 480 U.S. at 449. But fundamental

rules of construction should overcome doctrines of administrative

deference. See Perez, 135 S. Ct. at 1222 (Thomas, J., concurring

in the judgment) (“[R]egulations should be interpreted like any

other law.”); see also Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 668-69 (2007) (invoking the surplusage canon

when interpreting a regulation); Long Island Care at Home, 551

U.S. at 170 (invoking the general-specific canon when interpreting a regulation).

spect to “relatively informal” non-precedential interpretations offered by understaffed and underfunded

agencies like the BIA. Contrast Gomez, 831 F.3d at

655-56. Compelling deference to such decisions places

reviewing courts “in the impossible position of having

to uphold as reasonable on Tuesday one construction

that is completely antithetical to another construction

[that the court] affirmed as reasonable the Monday before.” Lin v. U.S. Dep’t of Justice, 416 F.3d 184, 190 (2d

Cir. 2005); see also Henry v. INS, 74 F.3d 1, 6 (1st Cir.

1996) (“An agency cannot merely flit serendipitously

from case to case, like a bee buzzing from flower to

flower, making up the rules as it goes along.”).

Applying traditional Skidmore principles, however,

would avoid this problem. Quasi-judicial agencies like

the BIA would receive deference for only carefully reasoned, long-held positions, according to the care and

logical power of their decisions—not simply because of

their status as quasi-judicial agency adjudicators. Cf.

SEC v. Chenery Corp., 318 U.S. 80, 87-88 (1943).

CONCLUSION

For the foregoing reasons, the judgment of the court

of appeals should be reversed.

Respectfully submitted,

CHARLES ROTH

NATIONAL IMMIGRANT

JUSTICE CENTER

208 S. LaSalle Street,

Suite 1300

Chicago, IL 60604

(312) 660-1613

RUSSELL ABRUTYN

WILLIAM A. STOCK

AMERICAN IMMIGRATION

LAWYERS ASSOCIATION

1331 G Street, N.W.

Suite 300

Washington, D.C. 20005

(202) 507-7600

JEAN-CLAUDE ANDRÉ *

ANDREW B. TALAI

GERRY B. HIRSCHFELD

SIDLEY AUSTIN LLP

555 W. Fifth Street,

Suite 4000

Los Angeles, CA 90013

(213) 896-6000

jcandre@sidley.com

DEREK A. WEBB

SIDLEY AUSTIN LLP

1501 K Street, N.W.

Washington, D.C. 20005

(202) 736-8000

Counsel for Amici Curiae

January 31, 2019

* Counsel of Record

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.