Amicus Curiae Brief — Andre Martello Barton, Petitioner v. William P. Barr, Attorney General

Supreme Court briefJul 3, 2019

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No. 18-725

IN THE

Supreme Court of the United States

___________

ANDRE MARTELLO BARTON,

Petitioner,

WILLIAM P. BARR, ATTORNEY GENERAL,

Respondent.

___________

On Writ of Certiorari

to the United States Court of Appeals

for the Eleventh 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 South LaSalle Street,

Suite 1300

Chicago, IL 60604

(312) 660-1613

JEAN-CLAUDE ANDRÉ *

ANDREW B. TALAI

KATELYN N. ROWE

MOHINDRA RUPRAM

SIDLEY AUSTIN LLP

555 West Fifth Street,

Suite 4000

Los Angeles, CA 90013

(213) 896-6000

jcandre@sidley.com

RUSSELL ABRUTYN

ABRUTYN LAW, PLLC

3765 12 Mile Road

Berkley, MI 48072

(248) 965-9440

Counsel for Amici Curiae

July 3, 2019

* Counsel of Record

TABLE OF CONTENTS

Page

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

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

INTRODUCTION AND SUMMARY OF THE

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

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

I. THE BIA’S UNPUBLISHED DECISION IN

THIS CASE IS NOT ENTITLED TO

CHEVRON DEFERENCE ............................

A. Most Circuits Have Declined To Apply

Chevron To Unpublished BIA Decisions ...

B. Aguirre-Aguirre Did Not Extend Chevron

To Unpublished BIA Decisions ...............

II. THIS COURT SHOULD RECONSIDER

WHETHER EVEN PUBLISHED BIA

DECISIONS

ARE

ENTITLED

CHEVRON DEFERENCE ............................

A. The BIA Lacks The Requisite Expertise,

Formalized Procedures, And Track Record Of Thorough Decisionmaking Necessary To Warrant Chevron Deference ......

B. The BIA’s Invocations Of Brand X To

“Reclaim” Chevron Deference Further

Counsel Hesitation ..................................

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

(i)

CASES

TABLE OF AUTHORITIES

Page

Ahmed v. Dep’t of Homeland Sec., 328 F.3d

383 (7th Cir. 2003) .....................................

Arobelidze v. Holder, 653 F.3d 513 (7th Cir.

2011) ........................................................... 7, 12

AT&T Corp. v. City of Portland, 216 F.3d

871 (9th Cir. 2000) .....................................

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

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

Carpio v. Holder, 592 F.3d 1091 (10th Cir.

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

Chevron, U.S.A., Inc. v. Nat. Res. Def.

Council, Inc., 467 U.S. 837 (1984) ......... passim

Chi. & S. Air Lines v. Waterman S.S. Corp.,

333 U.S. 103 (1948) ....................................

City of Arlington v. FCC, 569 U.S. 290

(2013) ..........................................................

Contreras-Bocanegra v. Holder, 678 F.3d

811 (10th Cir. 2012) ...................................

Fajardo v. Att’y Gen., 659 F.3d 1303 (11th

Cir. 2011) ....................................................

Fogo De Chao (Holdings) Inc. v. U.S. Dep’t of

Homeland Sec., 769 F.3d 1127 (D.C. Cir.

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

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

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

Garcia-Carias v. Holder, 697 F.3d 257 (5th

Cir. 2012) ....................................................

Garcia-Lopez v. Ashcroft, 334 F.3d 840 (9th

Cir. 2003), overruled on other grounds by

Cero v. Holder, 747 F.3d 773 (9th Cir.

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

Garcia-Quintero v. Gonzales, 455 F.3d 1006

(9th Cir. 2006) ............................................

iii

TABLE OF AUTHORITIES—continued

Page

Godinez-Arroyo v. Mukasey, 540 F.3d 848

(8th Cir. 2008) ............................................

Gutierrez-Brizuela v. Lynch, 834 F.3d 1142

(10th Cir. 2016) ........................................ 15, 27

Hernandez-Carrera v. Carlson, 547 F.3d

1237 (10th Cir. 2008) .................................

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

(1999) .............................................. 3, 11, 12, 14

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

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

Jaghoori v. Holder, 772 F.3d 764 (4th Cir.

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

Jean-Louis v. Att’y Gen., 582 F.3d 462 (3d

Cir. 2009) ....................................................

Jeudy v. Holder, 768 F.3d 595 (7th Cir.

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

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

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

Kisor v. Wilkie, No. 18-15, 2019 WL 2605554

(U.S. June 26, 2019) ........................... 10, 17, 25

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

Cir. 2011) .................................................. 19, 20

Lin v. Att’y Gen., 681 F.3d 1236 (11th Cir.

2012) ...........................................................

Lin v. Gonzales, 473 F.3d 979 (9th Cir.

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

Luna v. Holder, 637 F.3d 85 (2d Cir.

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

Mahn v. Att’y Gen. of U.S., 767 F.3d 170 (3d

Cir. 2014) .................................................. 7, 8, 9

Marin-Rodriguez v. Holder, 612 F.3d 591

(7th Cir. 2010) ............................................

Martin v. Occupational Safety & Health Rev.

Comm’n, 499 U.S. 144 (1991) .................. 15, 16

TABLE OF AUTHORITIES—continued

Page

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

2014) ........................................................... 7, 9

Michigan v. EPA, 135 S. Ct. 2699 (2015) .....

MikLin Enters., Inc. v. NLRB, 861 F.3d 812

(8th Cir. 2017) ............................................

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

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

Nat’l Cable & Telecomms. Ass’n v. Brand X

Internet Servs., 545 U.S. 967 (2005) .... 4, 25, 26

Nguyen v. Sessions, 901 F.3d 1093 (9th Cir.

2018) ...........................................................

Niam v. Ashcroft, 354 F.3d 652 (7th Cir.

2004) ...........................................................

Olivas-Motta v. Holder, 746 F.3d 907 (9th

Cir. 2013) ....................................................

Pereira v. Sessions, 138 S. Ct. 2105

(2018) ........................................................ 14, 24

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

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

Prestol Espinal v. Att’y Gen., 653 F.3d 213

(3d Cir. 2011) ..............................................

Prudencio v. Holder, 669 F.3d 472 (4th Cir.

2012) ...........................................................

Pruidze v. Holder, 632 F.3d 234 (6th Cir.

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

Quinchia v. U.S. Att’y Gen., 552 F.3d 1255

(11th Cir. 2008) ..........................................

Rotimi v. Gonzales, 473 F.3d 55 (2d Cir.

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

Ruiz-Del-Cid v. Holder, 765 F.3d 635 (6th

Cir. 2014) ....................................................

Sandoz Inc. v. Amgen Inc., 137 S. Ct. 1664

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

Santana v. Holder, 731 F.3d 50 (1st Cir.

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

TABLE OF AUTHORITIES—continued

Page

Scialabba v. Cuellar de Osorio, 573 U.S. 41

(2014) ..........................................................

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

(1944) .......................................................... 4, 8

Tula-Rubio v. Lynch, 787 F.3d 288 (5th Cir.

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

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

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

Vasquez v. Holder, 635 F.3d 563 (1st Cir.

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

William v. Gonzales, 499 F.3d 329 (4th Cir.

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

ADMINISTRATIVE DECISIONS

Matter of Alvarez-Briseno, No. A021-611209, 2009 WL 773178 (B.I.A. Feb. 27,

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

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

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

Matter of Barrios-Castillo, No. AXX-XX2116, 2007 WL 1520882 (B.I.A. May 11,

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

Matter of Estrada, No. AXXX-XX8-863, 2008

WL 5025206 (B.I.A. Oct. 27, 2008) ............

Matter of D-R-, 27 I. & N. Dec. 105 (B.I.A.

2017) ...........................................................

Matter of Fajardo Espinoza, 26 I. & N. Dec.

603 (B.I.A. 2015) ........................................

Matter of Falodun, 27 I. & N. Dec. 52 (B.I.A.

2017) ...........................................................

Matter of Fede, 20 I. & N. Dec. 35 (B.I.A.

1989) ...........................................................

Matter of Haro-Perez, No. AXXX-XX5-273,

2009 WL 2171613 (B.I.A. July 9, 2009) ....

TABLE OF AUTHORITIES—continued

Page

Matter of Jurado-Delgado, 24 I. & N. Dec. 29

(B.I.A. 2006) ............................................... 3, 13

Matter of L-E-A-, 27 I. & N. Dec. 40 (B.I.A.

2017) ...........................................................

Matter of Ortega-Lopez, 27 I. & N. Dec. 382

(B.I.A. 2018) ...............................................

Matter of R-A-, 24 I. & N. Dec. 629 (A.G.

2008) ...........................................................

Matter of Salgado-Valenzuela, No. AXXXXX2-297, 2009 WL 4030445 (B.I.A. Nov.

10, 2009) .....................................................

Matter of Sanchez Esquivel, No. AXXX-XX7884, 2009 WL 3250485 (B.I.A. Sept. 18,

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

Matter of Silva-Trevino, 24 I. & N. Dec. 687

(2008), rev’d, Silva-Trevino v. Holder, 742

F.3d 197 (5th Cir. 2014) ........................... 21, 29

Matter of Silva-Trevino, 26 I. & N. Dec. 550

(Op. Att’y Gen. 2015) .................................

Matter of Vella, 27 I. & N. Dec. 138 (B.I.A.

2017) ...........................................................

STATUTES AND REGULATIONS

Homeland Security Act of 2002, Pub. L. No.

107-296, 116 Stat. 2135 .............................

8 U.S.C. § 1103(a)(1) .....................................

§ 1229b(d)(1)....................................

47 U.S.C. § 151 et seq. ...................................

8 C.F.R. § 1003.1(e) .......................................

§ 1003.1(g) ....................................... 8, 10

vii

TABLE OF AUTHORITIES—continued

Board of Immigration Appeals: Affirmance

Without Opinion, Referral for Panel Review, and Publication of Decisions as Precedents, 73 Fed. Reg. 34,654 (June 18,

2008) ...........................................................

Board of Immigration Appeals: Procedural

Reforms to Improve Case Management, 67

Fed. Reg. 54,878 (Aug. 26, 2002) ...............

Page

SCHOLARLY AUTHORITIES

Susan Burkhardt, The Contours of Conformity: Behavioral Decision Theory and the

Pitfalls of the 2002 Reforms of Immigration Procedures, 19 Geo. Immigr. L.J. 35

(2004) ..........................................................

Evan J. Criddle, Chevron’s Consensus, 88

B.U. L. Rev. 1271 (2008) ............................

Brett M. Kavanaugh, Keynote Address: Two

Challenges for the Judge as Umpire: Statutory Ambiguity and Constitutional Exceptions, 92 Notre Dame L. Rev. 1907

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

Jaya Ramji-Nogales et al., Refugee Roulette:

Disparities in Asylum Adjudication, 60

Stan. L. Rev. 295 (2007).............................

Rebecca Sharpless, Zone of Nondeference:

Chevron and Deportation for a Crime, 9

Drexel L. Rev. 323 (2017) ..........................

Darren H. Weiss, Note, X Misses the Spot:

Fernandez v. Keisler and the (Mis)appropriation of Brand X by the Board of Immigration Appeals, 17 Geo. Mason L. Rev.

889 (2010) ..................................... 16, 18, 21, 24

viii

TABLE OF AUTHORITIES

OTHER AUTHORITIES

Page

Betsy Cavendish & Steven Schulman, Appleseed & Chi. Appleseed Fund for Justice,

Reimagining the Immigration Court Assembly Line: Transformative Change for the Immigration Justice System (2012), https://

www.appleseednetwork.org/uploads/1/2/4/

6/124678621/reimagining-the-immigrationcourt-assembly-line.pdf ...............................

Comm’n on Immigration, Am. Bar Ass’n,

2019 Update Report: Reforming the Immigration System: Proposals to Promote Independence, Fairness, Efficiency, and Professionalism in the Adjudication of Removal Cases (2019), Vol. 1, ES-20 (2019),

https://www.naij-usa.org/images/uploads/

newsroom/ABA_2019_reforming_the_

immigration_system_volume_1.pdf......... 19, 20

Comm’n on Immigration, Am. Bar Ass’n, Reforming the Immigration System: Proposals to Promote Independence, Fairness,

Efficiency, and Professionalism in the Adjudication of Removal Cases (2010),

https://www.americanbar.org/content/

dam/aba/publications/commission_on_

immigration/coi_complete_full_report.

authcheckdam.pdf ....................................

Exec. Office for Immigration Review, U.S.

Dep’t of Justice, Board of Immigration Appeals Practice Manual, https://www.

justice.gov/eoir/page/file/1101411/download

(last updated Oct. 16, 2018) ....................... 8, 21

TABLE OF AUTHORITIES—continued

Page

Exec. Office for Immigration Review, U.S.

Dep’t of Justice, Agency Decisions, Vols.

26–27, https://www.justice.gov/eoir/ag-biadecisions (last visited July 2, 2019) ........... 9, 21

Exec. Office for Immigration Review, U.S.

Dep’t of Justice, Statistics Yearbook: Fiscal Year 2017, https://www.justice.gov/

eoir/page/file/1107056/download ......... 9, 20, 22

Lisa Getter & Jonathan Peterson, Speedier

Rate of Deportation Rulings Assailed,

L.A. Times (Jan. 5, 2003), https://www.

latimes.com/archives/la-xpm-2003-jan-05na-immig5-story.html .................................

Tiziana Rinaldi, When the Government

Wrongly Deports People, Coming Back to

the US Is Almost Impossible, Pub. Radio

Int’l (July 26, 2018), https://www.pri.

org/stories/2018-07-26/when-governmentwrongly-deports-people-coming-back-usalmost-impossible ......................................

TRAC Immigration, Illegal Reentry Becomes

Top Criminal Charge (June 10, 2011),

http://trac.syr.edu/immigration/reports/

251/ .............................................................

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

Dep’t of Homeland Sec., Application for

Adjustment of Status (Form I-485) Quarterly Report (Fiscal Year 2017, 4th Quarter, July 1-Sept. 30, 2017) (Dec. 7, 2017),

available at https://www.uscis.gov/sites/

default/files/USCIS/Resources/Reports%20

and%20Studies/Immigration%20Forms%

20Data/Family-Based/I485_Performance

data_fy2017_qtr4.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 of those

1 Petitioner has submitted a letter granting blanket consent to

amicus curiae briefs. Respondent has granted consent for 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.

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 U.S. District

Courts, U.S. Courts of Appeals, and this Court.

INTRODUCTION AND

SUMMARY OF THE ARGUMENT

The question presented in this case is one of statutory interpretation: whether a lawfully admitted permanent resident who is not seeking admission to the

United States can be “render[ed] * * * inadmissible”

for purposes of the stop-time rule, 8 U.S.C.

§ 1229b(d)(1). Although both sides contend that the

statute has a plain meaning, amici submit that petitioner has the better reading. Compare Pet’r Br. 20–

22, with BIO 6–8. As petitioner correctly explains, an

offense “renders the alien” “inadmissible” under Section 1229b(d)(1) only if it actually triggers an adjudication of inadmissibility during removal proceedings.

Pet’r Br. 17–20. As petitioner alternatively explains,

even if Section 1229b(d)(1) does not require an actual

adjudication of inadmissibility, it at minimum requires that the predicate offense could trigger an adjudication of inadmissibility. Id. at 43–45. Either way,

petitioner prevails here because—as a lawfully admitted permanent resident within the United States—an

adjudication of inadmissibility was legally impossible.

Employing the traditional tools of statutory construction, petitioner carefully explains why the Eleventh Circuit’s contrary decision was incorrect. See id.

20–39, 46–52. Amici do not repeat those arguments

here, but instead address the issues of judicial deference to administrative agencies raised by the parties

in this case. Id. at 39–43, 52–53. For example, in the

court of appeals, the government asserted that, if the

court found Section 1229b(d)(1) ambiguous, the BIA’s

interpretation of the statute was entitled to deference

under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). See Gov’t C.A.

Br. 19 n.9 (arguing that the court of appeals “should

apply Chevron deference to the question”). As petitioner correctly explains, Section 1229b(d)(1) is not

ambiguous. See Pet’r Br. 15–39. But even if this Court

concludes that Section 1229b(d)(1) is ambiguous, amici

submit that applying Chevron deference in this case

would be unwarranted.

Part I begins with petitioner’s alternative argument

and explains why the BIA’s rejection of that argument

in its unpublished decision is not entitled to deference.

See Pet. App. 20a–24a. Every circuit that has considered whether to give Chevron deference to non-precedential BIA decisions has declined to do so. That consensus makes perfect sense, given this Court’s decision

in United States v. Mead Corp., 533 U.S. 218 (2001).

Administrative interpretations only merit deference

when Congress has “delegated authority to the agency

generally to make rules carrying the force of law,” and

the agency’s statutory interpretation “was promulgated in the exercise of that authority.” Id. at 226–27.

The BIA’s unpublished decisions do not fit the bill, and

this Court’s decision in INS v. Aguirre-Aguirre, 526

U.S. 415 (1999), is not to the contrary. Thus, with respect to petitioner’s alternative interpretation of Section 1229b(d)(1), the BIA has never addressed the issue in a precedential decision and is therefore not entitled to Chevron deference.

Part II addresses why this Court should reconsider

whether even the BIA’s published decisions—like Matter of Jurado-Delgado, 24 I. & N. Dec. 29 (B.I.A. 2006),

the decision on which the BIA relied in this case to reject petitioner’s primary argument—should be entitled

to Chevron deference. There are several reasons to believe that Congress would not have envisioned delegating lawmaking power—the hallmark of Chevron deference—to the BIA. As numerous courts and commentators have acknowledged, the BIA lacks the requisite

expertise, formalized adjudicatory procedures, and

track record of thorough decisionmaking necessary to

warrant a strong form of judicial deference. Moreover,

the BIA’s frequent attempts to aggrandize its power

through National Cable & Telecommunications Association v. Brand X Internet Services, 545 U.S. 967

(2005), suggest that Chevron deference will only give

rise to further mischief. If the Court reaches the question, it should therefore conclude that the BIA’s published decisions are at most entitled to deference under

Skidmore v. Swift & Co., 323 U.S. 134 (1944).

For the following reasons, the judgment of the court

of appeals should be reversed.

ARGUMENT

I. THE BIA’S UNPUBLISHED DECISION IN

THIS CASE IS NOT ENTITLED TO

CHEVRON DEFERENCE.

This case implicates the question of whether unpublished BIA decisions are entitled to Chevron deference. Pet’r Br. 52–53. In the court of appeals, the government argued that Chevron deference should apply

to the BIA’s non-precedential, single-member order.

See Gov’t C.A. Br. 19 n.9 (“[S]hould the Court find the

statute ambiguous, it should apply Chevron deference

to the question.”); see also Pet. App. 17a n.5 (“[T]he

government contends” that “the Board’s decision

here—which the parties agree is a non-precedential

single-member order—is entitled to Chevron deference.”). The government has pressed a similar argument in another case. See Respondent’s Br. at 17, Calix v. Lynch, 784 F.3d 1000 (5th Cir. 2015) (No. 1360764), available at 2014 WL 10475139.

The Eleventh Circuit did not “definitively” resolve

the question of whether unpublished BIA decisions

warrant Chevron deference. Pet. App. 17a n.5. But the

resounding answer is no. Every circuit that has considered the issue agrees, which is unsurprising in light

of this Court’s guidance in Mead. Amici therefore

agree with petitioner that, with respect to his alternative interpretation of Section 1229b(d)(1), the “agency

decision below is not entitled to Chevron deference because it is a non-precedential, single-judge order.”

Pet’r Br. 52.

A. Most Circuits Have Declined To Apply

Chevron To Unpublished BIA Decisions.

1. Chevron provides a two-step framework for “review[ing] an agency’s construction of the statute which

it administers.” 467 U.S. at 842. Step one: courts consider “whether Congress has directly spoken to the

precise question at issue.” Id. If so, then “that is the

end of the matter; for the court, as well as the agency,

must give effect to the unambiguously expressed intent of Congress.” Id. at 842–43; see also id. at 843 n.9

(explaining that, at step one, courts must employ the

“traditional tools of statutory construction”). Step two:

if Congress has not “directly addressed the precise

question at issue,” courts cannot “impose [their] own

construction on the statute.” Id. at 843. Instead, if “the

statute is silent or ambiguous,” courts must determine

“whether the agency’s answer is based on a permissible construction of the statute.” Id.

This Court offered two primary rationales for “the

principle of deference to administrative interpretations” in Chevron. See id. First, an agency’s power to

“administer” a congressional program necessarily entails “fill[ing] any gap left, implicitly or explicitly, by

Congress.” Id. at 843 (quoting Morton v. Ruiz, 415 U.S.

199, 231 (1974)). Courts therefore give “considerable

weight” to an agency’s “construction of a statutory

scheme it is entrusted to administer.” Id. at 844. Second, agencies often determine “the meaning or reach

of a statute” by “reconciling conflicting policies.” Id.

(quoting United States v. Shimer, 367 U.S. 374, 382

(1961)). Such policy arguments are better addressed to

administrators, who possess “more than ordinary

knowledge respecting the matters subjected to agency

regulations.” Id. at 865. Thus, in Chevron itself, this

Court held that the Environmental Protection

Agency’s interpretation of the term “stationary source”

was “entitled to deference” because it “represent[ed] a

reasonable accommodation of manifestly competing

interests.” Id. (deferring to “those with great expertise

and charged with responsibility for administering the

provision”).

But there are also limits to Chevron. For example, as

the Eleventh Circuit recognized here, “[o]ne of the

principal justifications for granting deference to administrative agencies is that they operate pursuant to

regular procedures that ensure thorough consideration and vetting of interpretive issues.” Pet. App. 17a

n.5; see also Chevron, 467 U.S. at 865 (noting that,

among other things, “the agency considered the matter

in a detailed and reasoned fashion”). When those procedures are “short-circuited,” however, the justification for applying Chevron deference likewise “evaporates.” Pet. App. 17a n.5.

Mead is illustrative. There, the question presented

was “whether a tariff classification ruling by the

United States Customs Service deserves judicial deference.” 533 U.S. at 221. This Court explained that administrative interpretations qualify for Chevron deference only “when it appears that Congress delegated

authority to the agency generally to make rules carrying the force of law,” and the agency’s statutory interpretation “was promulgated in the exercise of that authority.” Id. at 226–27. Among other problems, the tariff classification rulings at issue were not subject to notice-and-comment procedures, were not binding on

third parties, and were being “churned out at a rate of

10,000 a year at [the] agency’s 46 scattered offices.” Id.

at 233. Under those circumstances, “[a]ny suggestion

that [the] rulings [were] intended to have the force of

law * * * is simply self-refuting.” Id. This Court accordingly held that the rulings were “beyond the Chevron pale.” Id. at 234.

2. Every circuit that has considered whether to give

Chevron deference to unpublished BIA decisions has

declined to do so. See, e.g., Tula-Rubio v. Lynch, 787

F.3d 288, 291 (5th Cir. 2015); Mahn v. Att’y Gen. of

U.S., 767 F.3d 170, 173 (3d Cir. 2014); Martinez

v. Holder, 740 F.3d 902, 909–10 (4th Cir. 2014); RuizDel-Cid v. Holder, 765 F.3d 635, 639 (6th Cir. 2014);

Arobelidze v. Holder, 653 F.3d 513, 520 (7th Cir. 2011);

Carpio v. Holder, 592 F.3d 1091, 1097–98 (10th Cir.

2010); Quinchia v. U.S. Att’y Gen., 552 F.3d 1255, 1258

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

(2d Cir. 2007) (per curiam); Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1013 (9th Cir. 2006).2 And for good

reason, in light of this Court’s decision in Mead.

2 The Eighth and D.C. Circuits would likely agree. See Fogo De

Chao (Holdings) Inc. v. U.S. Dep’t of Homeland Sec., 769 F.3d

The BIA’s non-precedential decisions do not carry

the force of law. Only decisions rendered by a threemember panel (or the full Board) “may be designated

to serve as precedents” in immigration proceedings—

and even then, only upon a “majority vote of the permanent Board members.” 8 C.F.R. § 1003.1(g). Those

decisions are released in “published” form, and are

considered binding on the BIA and Immigration

Courts. See Exec. Office for Immigration Review, U.S.

Dep’t of Justice, Board of Immigration Appeals Practice Manual, ch. 1.4(d)(i), https://www.justice.gov/eoir/

page/file/1101411/download (last updated Oct. 16,

2018) [hereinafter BIA Practice Manual]. The vast majority of remaining BIA decisions are “unpublished”

and, while binding on the parties, are not considered

precedent. See id. ch. 1.4(d)(i)–(ii).

This lack of precedential value has not been lost on

the courts of appeals. For example, in Mahn, the Third

Circuit found Chevron deference “inappropriate” when

it was “asked to review an unpublished, non-precedential decision issued by a single BIA member.” 767 F.3d

at 173. The court explained that such decisions “do not

bind the BIA, and therefore do not carry the force of

law except as to those parties for whom the opinion is

rendered.” Id. (quoting De Leon-Ochoa v. Att’y Gen. of

U.S., 622 F.3d 341, 350 (3d Cir. 2010)). Operating under a lesser form of deference, see Skidmore, 323 U.S.

1127, 1137 & n.6 (D.C. Cir. 2014) (collecting cases for the proposition that “non-precedential opinions issued by one member of

the [BIA] are not entitled to Chevron deference”); Godinez-Arroyo

v. Mukasey, 540 F.3d 848, 850 (8th Cir. 2008) (“[B]ecause the underlying BIA decision in this case was unpublished, it may lack

the force of law and Chevron deference may be inappropriate.”).

The First Circuit has yet to address the issue. See Vasquez

v. Holder, 635 F.3d 563, 567 n.6 (1st Cir. 2011) (“[W]e have no

need to address whether an opinion issued by a single member of

the BIA * * * is entitled to Chevron deference * * * .”).

at 140, the Third Circuit concluded that the petitioner’s Pennsylvania conviction for reckless endangerment was not a “crime involving moral turpitude”

and ultimately granted the petition for review and vacated the removal order. Mahn, 767 F.3d at 172–75.

Similarly, in Martinez, the Fourth Circuit found

that, “[w]hen issuing a single-member, nonprecedential opinion, 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.” 740 F.3d

at 909–10. The court confirmed that such a decision

“does not constitute a precedential opinion, as a precedential opinion may only be issued by a three-member

panel.” Id. at 909 (citing 8 C.F.R. § 1003.1(g), (e)(6)).

Applying only the “modest deference” described in

Skidmore, the Fourth Circuit concluded that the BIA

incorrectly interpreted the statutory phrase “particular social group” under 8 U.S.C. § 1231(b)(3), partially

granted the petition for review, and remanded for further proceedings. Id. at 910–13.

Moreover, unpublished BIA decisions are being

“churned out” at a staggering rate. See Mead, 533 U.S.

at 233 (“Any suggestion that rulings intended to have

the force of law are being churned out at a rate of

10,000 a year * * * is simply self-refuting.”). For example, in Fiscal Year 2017, the BIA—comprised of a mere

21 Members—completed 31,820 appeals in total. See

Exec. Office for Immigration Review, U.S. Dep’t of

Justice, Statistics Yearbook: Fiscal Year 2017, at

36–37, https://www.justice.gov/eoir/page/file/1107056/

download [hereinafter FY 2017 Statistics Yearbook].

Nevertheless, during that same period of time, the BIA

issued only 29 published decisions—roughly 0.091%

percent of its completed appeals. See Exec. Office for

Immigration Review, Agency Decisions, Vols. 26–27,

https://www.justice.gov/eoir/ag-bia-decisions (last visited July 2, 2019). As this baseline statistic implies,

the BIA’s unpublished decisions lack the degree of care

and formality ordinarily associated with agency interpretations that merit deference. See Mead, 533 U.S. at

229–30 (explaining that Chevron deference should be

given to “relatively formal administrative procedure[s],” which tend to promote “fairness and deliberation”).

Finally, unpublished BIA decisions do not require a

majority vote of the Board, 8 C.F.R. § 1003.1(g), and as

such, do not necessarily represent the Board’s “‘authoritative’ or ‘official position.’” Cf. Kisor v. Wilkie,

No. 18-15, 2019 WL 2605554, at *9 (U.S. June 26,

2019) (following Mead, 533 U.S. at 257–59 & n.6

(Scalia, J., dissenting)). Indeed, reflective of disagreements between Board Members, differences in briefing

or briefing quality, or simply a change of heart, unpublished decisions can and do contradict each other.

For instance, amici located an unpublished 2007 decision in which the BIA held—contrary to its decision in

this case—that the stop-time rule would not be triggered for a permanent resident unless his predicate

conviction rendered him deportable, even though that

offense was one that would render a non-permanent

resident inadmissible. See Matter of Barrios-Castillo,

No. AXX-XX2-116, 2007 WL 1520882, at *2 (B.I.A.

May 11, 2007) (holding that the permanent resident

“was not precluded, by reason of the 1998 conviction

for possession of [an indeterminate quantity of] marihuana, from establishing his continuous residence”

notwithstanding that all drug offenses trigger inadmissibility under 8 U.S.C. § 1182(a)(2)(A)(i)(II)).

In sum, with respect to petitioner’s alternative interpretation of Section 1229b(d)(1), the BIA’s unpublished decision in this case is not entitled to Chevron deference.3

B. Aguirre-Aguirre Did Not Extend Chevron

To Unpublished BIA Decisions.

Citing Aguirre-Aguirre, 526 U.S. at 424–25, the

Eleventh Circuit stated below that “Chevron deference

applies with full force when the [BIA] interprets ambiguous statutory terms in the course of ordinary caseby-case adjudication.” See Pet. App. 7a. In AguirreAguirre, the question presented concerned the proper

interpretation of the phrase “committed a serious nonpolitical crime” in former 8 U.S.C. § 1253(h)(2)(C). See

526 U.S. at 418. The BIA’s decision was unpublished.

See Garcia-Quintero, 455 F.3d at 1013 (recognizing

that Aguirre-Aguirre concerned “an unpublished BIA

decision”). And in reversing the Ninth Circuit’s judgment, this Court explained that “the BIA should be accorded Chevron deference as it gives ambiguous statutory terms ‘concrete meaning through a process of

case-by-case adjudication.’” Aguirre-Aguirre, 526 U.S.

3 In the court of appeals, the government argued that Chevron

deference should apply because the BIA “followed its precedential

decision” in Jurado-Delgado. Gov’t C.A. Br. 19 n.9; see also Pet.

App. 23a. But that contention was incorrect. As petitioner correctly observes, “Jurado did not decide between [his] alternative

interpretation and the government’s interpretation.” Pet’r Br. 53.

Indeed, the Eleventh Circuit explained that Jurado-Delgado did

not “explicitly answer” the question of statutory interpretation

presented here. Pet. App. 18a n.5 (quoting Calix v. Lynch, 784

F.3d 1000, 1009 (5th Cir. 2015)); see also Nguyen v. Sessions, 901

F.3d 1093, 1098 (9th Cir. 2018) (explaining that Jurado-Delgado

“does not resolve the issue or require us to defer to the agency”).

In any event, the government has since acknowledged that “the

Board itself has yet to address the issue in a precedential opinion.” BIO 12.

at 425 (quoting INS v. Cardoza-Fonseca, 480 U.S. 421,

448 (1987)).

But Aguirre-Aguirre does not stand for the proposition that unpublished BIA decisions are entitled to

Chevron deference. For one thing, this Court subsequently made clear in Mead that “the sine qua non of

Chevron deference is an agency statement carrying the

force of law.” See Arobelidze, 653 F.3d at 520 (citing

Mead, 533 U.S. at 226–27). And here, there can be no

dispute that unpublished BIA decisions do not carry

the force of law. See pp. 8–10, supra (discussing 8

C.F.R. § 1003.1 and the BIA Practice Manual). For another thing, this Court had no reason to decide

whether unpublished BIA decisions warrant Chevron

deference in Aguirre-Aguirre. There, the precise issue

of statutory interpretation had been addressed by the

BIA “in one of its earlier decisions” that carried the

force of law. See Aguirre-Aguirre, 526 U.S. at 418 (citing Matter of McMullen, 19 I. & N. Dec. 90 (B.I.A.

1984)). For that reason, perhaps, neither the parties

nor the amici in Aguirre-Aguirre briefed substantive

arguments concerning the application of Chevron deference to unpublished BIA decisions.4

4 See, e.g., Pet’r Br., INS v. Aguirre-Aguirre, 526 U.S. 415

(1999) (No. 97-1754), available at 1998 WL 858535; Respondent’s

Br., INS v. Aguirre-Aguirre, 526 U.S. 415 (1999) (No. 97-1754),

available at 1999 WL 26721; Pet’r Reply Br., INS v. AguirreAguirre, 526 U.S. 415 (1999) (No. 97-1754), available at 1999 WL

74195; Amicus Curiae Br. of Lawyers Comm. for Human Rights

in Support of Resp., INS v. Aguirre-Aguirre, 526 U.S. 415 (1999)

(No. 97-1754), available at 1999 WL 23657; Amicus Curiae Br. of

Office of U.N. High Comm’r for Refugees in Support of Resp., INS

v. Aguirre-Aguirre, 526 U.S. 415 (1999) (No. 97-1754), available

at 1999 WL 33437; Amicus Curiae Br. in Support of Resp., INS

v. Aguirre-Aguirre, 526 U.S. 415 (1999) (No. 97-1754), available

at 1999 WL 26718.

II. THIS COURT SHOULD RECONSIDER

WHETHER

EVEN

PUBLISHED

BIA

DECISIONS ARE ENTITLED TO CHEVRON

DEFERENCE.

Petitioner’s primary challenge to the Eleventh Circuit’s decision is that Section 1229b(d)(1) is “straightforward” and unambiguous: “an offense ‘renders the

alien’ ‘inadmissible’ or ‘removable’ if it actually renders the alien inadmissible or removable at the alien’s

own removal hearing.” Pet’r Br. 16. Amici agree with

this interpretation. Here, petitioner’s 1996 aggravated

assault convictions did not trigger the stop-time rule

because they “were never even capable of rendering

Petitioner ‘inadmissible’ or ‘removable’ at his removal

proceeding.” Id.

As petitioner acknowledges, however, the BIA’s published decision in Jurado-Delgado, 24 I. & N. Dec. at

31—the decision on which the BIA relied in its unpublished decision in this case—addressed and rejected that primary contention. Pet’r Br. 39. Thus, to

the extent that this Court disagrees with petitioner’s

plain reading of Section 1229b(d)(1), finds the statute

ambiguous, and looks beyond the unpublished BIA decision in this case to Jurado-Delgado as the reasoned

interpretation of the BIA, petitioner is correct that Jurado-Delgado “is so weak that it is not entitled to Chevron deference.” Pet’r Br. 40–43.5

5 Jurado-Delgado also considered whether the stop-time rule

should apply retroactively to pre-1997 convictions and concluded

that it should. 24 I. & N. Dec. at 32. The Seventh and Fourth Circuits have rejected the BIA’s retroactivity analysis on the merits.

See Jeudy v. Holder, 768 F.3d 595, 599–600 (7th Cir. 2014); Jaghoori v. Holder, 772 F.3d 764, 772 (4th Cir. 2014). While petitioner was convicted before the passage of the stop-time statute,

he has not challenged the stop-time rule’s retroactivity as applied

This case may therefore implicate the question of

whether any published or unpublished BIA decision

deserves Chevron deference. It was 20 years ago that

this Court in Aguirre-Aguirre determined that deference should extend to BIA decisions where “‘the statute is silent or ambiguous with respect to the specific

issue’ before it” and the BIA’s “answer is based on a

permissible construction of the statute.” 526 U.S. at

424 (quoting Chevron, 467 U.S. at 843). In the intervening 20 years, however, the BIA has significantly

transformed in ways that recommend reconsideration

of such deference. See Chevron, 467 U.S. at 843–45;

Mead, 533 U.S. at 228 (in determining “[t]he fair measure of deference to an agency administering its own

statute * * * courts have looked to the degree of the

agency’s care, its consistency, formality, and relative

expertness” (footnotes omitted) (citing Skidmore, 323

U.S. at 139–40)). In the dozen-plus immigration cases

that the Court has heard over those 20 years, it has

granted Chevron deference to the BIA only once, and

then not in a removal case. See Scialabba v. Cuellar de

Osorio, 573 U.S. 41 (2014) (plurality opinion). Amici

submit that only Skidmore deference should apply to

even published BIA decisions like Jurado-Delgado.

See Mead, 533 U.S. at 234.6

to him. The Court should reserve this question for a case in which

the issue has been preserved and fully briefed by the parties.

6 Several Members of this Court have questioned the wisdom of

Chevron deference altogether. See, e.g., Pereira v. Sessions, 138

S. Ct. 2105, 2121 (2018) (Kennedy, J., concurring) (“[I]t seems

necessary and appropriate to reconsider, in an appropriate case,

the premises that underlie Chevron and how courts have implemented that decision.”); Michigan v. EPA, 135 S. Ct. 2699, 2712

(2015) (Thomas, J., concurring) (“Chevron deference raises serious separation-of-powers questions.”); Perez v. Mortg. Bankers

Ass’n, 135 S. Ct. 1199, 1212 (2015) (Scalia, J., concurring) (“The

problem is bad enough, and perhaps insoluble if Chevron is not to

A. The BIA Lacks The Requisite Expertise,

Formalized Procedures, And Track Record Of Thorough Decisionmaking Necessary To Warrant Chevron Deference.

1. The BIA is a non-statutory creature operating

within a split-enforcement structure. The BIA adjudicates (within limits imposed on it), and DHS enforces,

the immigration laws. See 8 U.S.C. § 1103(a)(1) (“The

Secretary of Homeland Security shall be charged with

the administration and enforcement of * * * laws relating to the immigration and naturalization of aliens * * * .”).7 In a similar context where Congress

“separated enforcement and rulemaking powers from

adjudicative powers, assigning these respective functions to two different administrative authorities,” this

Court declined to defer to the adjudicatory agency’s

view of the law. See Martin v. Occupational Safety

be uprooted, with respect to interpretive rules setting forth

agency interpretation of statutes.”); City of Arlington v. FCC, 569

U.S. 290, 314 (2013) (Roberts, C.J., joined by Kennedy and Alito,

JJ., dissenting) (“Chevron is a powerful weapon in an agency’s

regulatory arsenal. * * * [T]he danger posed by the growing power

of the administrative state cannot be dismissed.”); Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1149 (10th Cir. 2016) (Gorsuch, J.,

concurring) (Chevron “permit[s] executive bureaucracies to swallow huge amounts of core judicial and legislative power.”); see also

Brett M. Kavanaugh, Keynote Address: Two Challenges for the

Judge as Umpire: Statutory Ambiguity and Constitutional Exceptions, 92 Notre Dame L. Rev. 1907, 1911 (2017) (Chevron allows

agencies, “[u]nder the guise of ambiguity, [to] stretch the meaning

of statutes enacted by Congress to accommodate their preferred

policy outcomes.”).

7 “On March 1, 2003 * * * the INS ceased to exist as an independent agency under the umbrella of the U.S. Department of

Justice, and its functions were transferred to the new Department of Homeland Security.” Ahmed v. Dep’t of Homeland Sec.,

328 F.3d 383, 384 n.1 (7th Cir. 2003); Homeland Security Act of

2002, Pub. L. No. 107-296, 116 Stat. 2135.

& Health Review Comm’n, 499 U.S. 144, 151–52

(1991). Martin understood the adjudicative agency to

have “the type of nonpolicymaking adjudicatory powers typically exercised by a court in the agency-review

context.” Id. at 154. Just so here.

The BIA’s quasi-judicial role is arguably inferior to

the legislative rulemaking envisioned in Chevron. See,

e.g., Evan J. Criddle, Chevron’s Consensus, 88 B.U. L.

Rev. 1271, 1317 (2008) (arguing that “[a]dministrative

law judges who lack policymaking authority [sh]ould

not receive deference under Chevron”); Darren

H. Weiss, Note, X Misses the Spot: Fernandez v. Keisler and the (Mis)appropriation of Brand X by the Board

of Immigration Appeals, 17 Geo. Mason L. Rev. 889,

914 (2010) (arguing that legislative rulemaking is superior to adjudication because it “produces higher

quality rules” and “allow[s] all potentially affected

members of the public an opportunity to participate”

(quoting 1 Richard J. Pierce, Jr., Administrative Law

Treatise § 6.8, at 368–72 (4th ed. 2002))). The fact that

the BIA cannot itself promulgate regulations further

illustrates the point. Cf. Martin, 499 U.S. at 154

(“[W]hen a traditional, unitary agency uses adjudication to engage in lawmaking by regulatory interpretation, it necessarily interprets regulations that it has

promulgated.”); Matter of Fede, 20 I. & N. Dec. 35, 36

(B.I.A. 1989) (finding no ability to entertain challenges

to regulations).

2. Nor does the BIA have the level of expertise envisioned by Chevron. See 467 U.S. at 865 (agency entitled to deference where “the regulatory scheme is technical and complex”). While the BIA certainly considers

immigration law in many cases, as discussed below,

weaknesses in its structure make it difficult to transform this activity into expertise. And it has no advantage in resolving questions of criminal law and

general statutory construction. See, e.g., Garcia-Lopez

v. Ashcroft, 334 F.3d 840, 843 (9th Cir. 2003) (no deference afforded to BIA’s interpretation because criminal code at issue “is not a statute which the BIA administers or has any particular expertise in interpreting”); cf. Kisor, 2019 WL 2605554, at *9 (“When the

agency has no comparative expertise in resolving a

regulatory ambiguity, Congress presumably would not

grant it that authority.”).

Federal courts are better equipped than the BIA to

resolve questions of criminal statutory interpretation.

Criminal law expertise is particularly necessary for interpreting ambiguities in removal statutes predicated

on criminal offenses. See Rebecca Sharpless, Zone of

Nondeference: Chevron and Deportation for a Crime, 9

Drexel L. Rev. 323, 342 (2017). Commentators have explained that even interpreting “seemingly neutral”

phrases—like “described in” or “relating to”—requires

expertise that the BIA does not possess. Id. at 343. For

example, federal courts more regularly interpret the

term “aggravated felony” when presiding over illegal

reentry prosecutions under 8 U.S.C. § 1326.8

Similarly, Asylum Officers from DHS’s Citizenship

and Immigration Services (CIS) are specially trained

to adjudicate applications for asylum. In addition to

reviewing more applications than the BIA,9 the CIS

8 Illegal reentry is one of the most common convictions in the

federal criminal system, accounting for thousands of convictions

annually. See TRAC Immigration, Illegal Reentry Becomes

Top Criminal Charge (June 10, 2011), http://trac.syr.edu/

immigration/reports/251/.

9 U.S. Citizenship & Immigration Servs., Application for Adjustment of Status (Form I-485) Quarterly Report (Dec. 7, 2017),

available at https://www.uscis.gov/sites/default/files/USCIS/

Resources/Reports%20and%20Studies/Immigration%20Forms%20

Data/Family-Based/I485_Performancedata_fy2017_qtr4.pdf.

Asylum Office is focused on those cases and how to

handle them. See, e.g., Jaya Ramji-Nogales et al., Refugee Roulette: Disparities in Asylum Adjudication, 60

Stan. L. Rev. 295, 311, 381 (2007). The CIS Asylum

Office is a specialized group of adjudicators who interview asylum claimants and evaluate the merits of

their claims. Id. All new asylum officers are required

to complete “an intensive five-week basic training

course with testing” that informs them about the legal

issues, country conditions, and other asylum procedures that impact their decision-making. Id. at 311. As

a result, Asylum Officers “receive much more initial

and ongoing training than the immigration judges.”

Id. at 381.

3. The BIA does not have “formal administrative

procedure[s]” that foster “fairness and deliberation” in

its decisions. See Mead, 533 U.S. at 230. Formal administrative procedures are necessary because they

“bespeak * * * congressional willingness to have the

agency, rather than the courts, resolve statutory ambiguities.” Id. at 241. No congressional delegation can

be implied from the Immigration and Nationality Act,

which specifies no rules—formal or other—for the BIA.

BIA procedures adopted by regulation and practice

have been criticized for undermining fairness. Historically, the BIA operated like an appellate court in

which three-member panels would hear cases and issue written opinions. Weiss, supra, at 916. But in

2002, former Attorney General Ashcroft implemented

a rule allowing single Board Members to review appeals and issue summary orders. See Board of Immigration Appeals: Procedural Reforms to Improve Case

Management, 67 Fed. Reg. 54,878, 54,878 (Aug. 26,

2002); see also 8 C.F.R. § 1003.1(e)(4).10 A single Board

Member now has the authority to affirm without opinion, and in doing so “shall not include further explanation or reasoning.” See 8 C.F.R. § 1003.1(e)(4)(ii). The

ABA Commission on Immigration attributed to the

BIA’s use of summary affirmances “a qualitative

change in the decision making in the administrative

process * * * that fosters the perception that the process is not fair.” Comm’n on Immigration, Am. Bar

Ass’n, Reforming the Immigration System: Proposals

to Promote Independence, Fairness, Efficiency, and

Professionalism in the Adjudication of Removal Cases

4-4 (2010), https://www.americanbar.org/content/dam/

aba/publications/commission_on_immigration/coi_

complete_full_report.authcheckdam.pdf.

While the number of summary decisions has declined since 2010, there are still a high number of short

single-member opinions that often “dispos[e] of the

matter based on only one of the issues presented.” See

Comm’n on Immigration, Am. Bar Ass’n, 2019 Update

Report: Reforming the Immigration System: Proposals

to Promote Independence, Fairness, Efficiency, and

Professionalism in the Adjudication of Removal

Cases, Vol. 1, ES-20 (2019), https://www.naij-usa.org/

images/uploads/newsroom/ABA_2019_reforming_the_

immigration_system_volume_1.pdf [hereinafter ABA

2019 Update Report]. As the Ninth Circuit explained

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

2011), “[t]he nature of this one-member, non-preceden-

10 Following the implementation of this procedural reform, 58%

of all BIA cases filed in 2001 resulted in single-member summary

decisions. See Susan Burkhardt, The Contours of Conformity: Behavioral Decision Theory and the Pitfalls of the 2002 Reforms of

Immigration Procedures, 19 Geo. Immigr. L.J. 35, 47–48 (2004).

tial, BIA order—one that does not explain its reasoning—‘does not reflect the agency’s fair and considered

judgment on the matter in question.’” Id. at 532.

Additionally, the BIA’s own practices and procedures have drawn criticism for undermining fairness

and public participation. The BIA occupies an unusual

role within the administrative state because it does

not operate openly. It maintains no public docket. In

fact, the Executive Office for Immigration Review

(EOIR) currently lacks a fully-integrated, system-wide

electronic filing and case management system. ABA

2019 Update Report, supra, at ES-20. Existing immigration court databases “are often not updated with

new information,” which can undermine an immigrant’s ability to receive crucial updates about their

court proceedings (like hearing information).11

The BIA rarely invites outside participation before

issuing its very few precedential decisions. The ABA

Commission on Immigration reported this year that

the number of precedential BIA decisions “is still very

low, as is the rate of oral argument.” ABA 2019 Update

Report, supra, at ES-20; id. at ES-50 (recognizing that

oral arguments “are still extremely rare”). In 2017, the

BIA completed 31,820 cases12 but issued only 29 pub-

11 See Betsy Cavendish & Steven Schulman, Appleseed & Chi.

Appleseed Fund for Justice, Reimagining the Immigration Court

Assembly Line: Transformative Change for the Immigration Justice System 63, 65 (2012), https://www.appleseednetwork.org/

uploads/1/2/4/6/124678621/reimagining-the-immigration-courtassembly-line.pdf (emphasis added).

12 See EOIR, FY 2017 Statistics Yearbook, at 36 fig.27.

lished decisions—a mere 0.091% of all decisions rendered that year.13 It appears that there was not a single oral argument before any of the decisions were published. See Exec. Office for Immigration Review,

Agency Decisions, Vols. 26–27, https://www.justice.

gov/eoir/ag-bia-decisions (last visited July 2, 2019). In

fact, the BIA actually denied two requests for oral argument in 2017. See Matter of Vella, 27 I. & N. Dec.

138, 138 (B.I.A. 2017); Matter of Falodun, 27 I. & N.

Dec. 52, 52 (B.I.A. 2017). This stands in stark contrast

to the APA’s notice-and-comment rulemaking to which

Chevron deference is more traditionally applied, including CIS’s and EOIR’s own regulations appearing

in the Federal Register.

Public participation is further limited by the fact

that the BIA rarely accepts amicus briefs. In 2017, the

BIA seemingly allowed amici curiae participation in

only two of the 29 cases resulting in published decisions. See Matter of L-E-A-, 27 I. & N. Dec. 40, 42 &

n.1 (B.I.A. 2017); Matter of Silva-Trevino, 26 I. & N.

Dec. 826, 826–27 & n.1 (B.I.A. 2016). Likewise, the

BIA rarely grants amicus requests for argument. BIA

Practice Manual ch. 2.10 (“The Board generally limits

the appearance of amicus curiae to the filing of

briefs.”). Commentators have criticized these procedures for “limit[ing] the ability of immigration experts

and practitioners to inform Board decisions.” Weiss,

supra, at 920.

The BIA’s lack of transparency regarding certain

procedures also undermines fairness. A Freedom of Information Act lawsuit was filed this year against EOIR

because it had not publicly disclosed the standard used

13 Exec. Office for Immigration Review, U.S. Dep’t of Justice,

Agency Decisions, Vols. 26–27, https://www.justice.gov/eoir/agbia-decisions (last visited July 2, 2019).

by the BIA and immigration judges for adjudicating

motions to stay removal. See Compl. ¶ 32, Am. Immigration Council v. Exec. Office for Immigration Review, No. 1:19-cv-01835-DLC (S.D.N.Y. Feb. 28, 2019),

ECF No. 4. This information is crucial so that immigrants have a full and fair ability to litigate their stay

requests. Once removed, it is extremely difficult for individuals—even those with meritorious claims—to secure legal representation and successfully litigate

their immigration cases. Id. ¶¶ 22–24.14

4. Case backlog and resource constraints have undermined the BIA’s thoroughness in deciding cases—

yet another reason weighing against Chevron deference. See 467 U.S. at 865 (agency entitled to deference

where “the agency considered the matter in a detailed

and reasoned fashion”). In 2017, the BIA received a

staggering 33,503 cases but only completed 31,820.15

Cf. Mead, 533 U.S. at 233 (no deference where agency’s

rulings were “being churned out” at a rate of 10,000 to

15,000 a year). At times, the BIA has been deciding

cases at the rate of 7–10 minutes per case, per Board

Member.16 Federal courts have repeatedly raised con-

14 See also Tiziana Rinaldi, When the Government Wrongly Deports People, Coming Back to the US is Almost Impossible, Pub.

Radio Int’l (July 26, 2018), https://www.pri.org/stories/2018-0726/when-government-wrongly-deports-people-coming-back-us-almost-impossible (“Most people don’t have the support or resources to appeal their deportations to begin with, let alone fight

their cases from abroad.”).

15 See EOIR, FY 2017 Statistics Yearbook, at 36 fig.27.

16 See Lisa Getter & Jonathan Peterson, Speedier Rate of Deportation Rulings Assailed, L.A. Times (Jan. 5, 2003), https://

www.latimes.com/archives/la-xpm-2003-jan-05-na-immig5-story.

html (cited in Kadia v. Gonzales, 501 F.3d 817, 820 (7th Cir.

2007)).

cerns about the “sorely overworked Board of Immigration Appeals” and its “crushing workload that the executive and legislative branches * * * have refused to

alleviate.” See, e.g., Kadia v. Gonzales, 501 F.3d 817,

820–21 (7th Cir. 2007).

As a result, it is unsurprising that the Federal Reporter is replete with examples of the BIA’s failure to

observe “elementary principles of adjudication.” See

Niam v. Ashcroft, 354 F.3d 652, 654 (7th Cir. 2004)

(listing erroneous BIA decisions from the Second, Seventh, Eighth, and Ninth Circuits).17 The Seventh Circuit has noted that the BIA’s “[r]epeated egregious failures * * * to exercise care * * * can be understood, but

not excused, as consequences of a crushing workload

that the executive and legislative branches of the federal government have refused to alleviate.” Kadia, 501

F.3d at 821 (emphasis added).

The BIA also frequently takes inconsistent positions,

which further weighs against Chevron deference. See

Mead, 533 U.S. at 228 (explaining that deference is

partially determined by the agency’s own “consistency

with earlier and later pronouncements”). For example,

this Court rejected the Immigration and Naturalization Services’ request for heightened deference in

Cardoza-Fonseca in part because of “the inconsistency

of the positions the BIA has taken through the years.”

17 See, e.g., 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.”); Benslimane

v. Gonzales, 430 F.3d 828, 829 (7th Cir. 2005) (noting that in 2005

the Seventh Circuit “reversed the [BIA] in whole or part in a staggering 40 percent of the 136 petitions to review the Board that

were resolved on the merits”); 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.”).

480 U.S. at 446 n.30. One study conducted in 2008

found that the “BIA reversed itself at an alarming rate

of 12 percent.” Weiss, supra, at 915 (citing Katie

R. Eyer, Administrative Adjudication and the Rule of

Law, 60 Admin. L. Rev. 647, 696 (2008)). And BIA inconsistencies are not always readily apparent because

many unpublished BIA decisions are not publicly

available on EOIR’s website or Westlaw.

B. The BIA’s Invocations Of Brand X To “Reclaim” Chevron Deference Further Counsel Hesitation.

As Members of this Court have previously recognized, the “reflexive deference” sometimes accorded to

the BIA under Chevron has been “troubling.” See Pereira v. Sessions, 138 S. Ct. 2105, 2120 (2018) (Kennedy, J., concurring). That “abdication of the Judiciary’s proper role” in interpreting statutes, id., has been

compounded by this Court’s decision in Brand X.

Assume, for instance, that this Court finds Section

1229b(d)(1)’s text ambiguous, but that the BIA’s decision in Jurado-Delgado does not warrant Chevron deference because it makes “scant sense.” See Pet’r Br. 40

(quoting Mellouli v. Lynch, 135 S. Ct. 1980, 1989

(2015)). In all likelihood, this Court would still provide

its independent interpretation of “render[ed] * * * inadmissible.” But if petitioner prevails under those circumstances and the matter thereafter returns to the

agency (or the same issue subsequently arises in another case), the BIA could likely assert the power to

reject this Court’s reading of Section 1229b(d)(1). See

Sandoz Inc. v. Amgen Inc., 137 S. Ct. 1664, 1678

(2017) (Breyer, J., concurring) (explaining that, under

Brand X, administrative agencies “may well have authority to depart from, or to modify,” this Court’s interpretation of an ambiguous statute).18

Amici submit that the mischief associated with

Brand X provides yet another reason for reconsidering

whether the BIA should receive Chevron deference in

the first instance. See Kisor, 2019 WL 2605554, at *21

(Gorsuch, J., concurring in the judgment) (explaining

that, under Brand X, “an agency is always free to

adopt a different view and insist on judicial deference

to its new judgment”).

1. Brand X requires federal courts to override their

previous interpretations of ambiguous statutes in favor of those later announced by administrative agencies. In that case, the Federal Communications Commission (FCC) conducted a rulemaking to determine

whether cable Internet companies provide “telecommunications service” as defined in Title II of the Communications Act, 47 U.S.C. § 151 et seq. See Brand X,

545 U.S. at 977–79. The FCC concluded that cable

companies did not provide such service, and were

therefore exempt from mandatory “common-carrier

regulation.” Id. at 979. The Ninth Circuit vacated the

FCC’s ruling in part. Id. Rather than defer to the

FCC’s new interpretation of “telecommunications service,” the court adhered to “the stare decisis effect” of

its previous decision in AT&T Corp. v. City of Portland, 216 F.3d 871 (9th Cir. 2000). See Brand X, 545

U.S. at 979–80. There, the Ninth Circuit concluded

18 See also, e.g., MikLin Enters., Inc. v. NLRB, 861 F.3d 812,

835 n.9 (8th Cir. 2017) (en banc) (Kelly, J., dissenting) (“Courts

have held that Brand X applies to judicial precedent from the Supreme Court.”); Hernandez-Carrera v. Carlson, 547 F.3d 1237,

1247–48 (10th Cir. 2008) (“[W]e see no reason why the holding in

Brand X would not be equally applicable to agency constructions

that displace tentative Supreme Court interpretations.”).

that cable broadband was a “telecommunications service” based on a contrary interpretation of the statute.

Id. at 979 (citing Portland, 216 F.3d at 877–80).

This Court reversed. As the majority explained it,

the Ninth Circuit incorrectly “assum[ed]” that Portland overrode the FCC’s construction of the statute.

See id. “Only a judicial precedent holding that the statute unambiguously forecloses the agency’s interpretation, and therefore contains no gap for the agency to

fill,” the Court explained, “displaces a conflicting

agency construction.” Id. at 982–83. This approach

“follows from Chevron itself,” the Court elaborated,

which “established a ‘presumption that Congress * * * understood that [statutory] ambiguity

would be resolved, first and foremost, by the agency.’”

Id. at 982 (quoting Smiley v. Citibank (S.D.), N.A., 517

U.S. 735, 740–41 (1996)). Thus, because Portland did

not find that the “Communications Act unambiguously

required treating cable Internet providers as telecommunications carriers,” the Court held that the Ninth

Circuit erred in failing to apply Chevron deference to

the FCC’s interpretation of “telecommunications service.” Id. at 984–85.

2. Members of this Court have criticized Brand X.

For example, dissenting in that case, Justice Scalia

pointed out the “bizarre” and “probably unconstitutional” consequence of making “judicial decisions subject to reversal by executive officers.” See id. at 1016

(Scalia, J., dissenting). An administrative agency

would be empowered to “disregard” judicial construction of a given statute—even when the agency is party

to the case—and “seek Chevron deference for its contrary construction the next time around.” Compare id.

at 1017, with Chicago & Southern Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 113 (1948) (holding that

judgments of Article III courts “may not lawfully be revised, overturned or refused faith and credit by another Department of Government”). Justice Gorsuch

has likewise observed that Brand X “risks trampling

the constitutional design by affording executive agencies license to overrule a judicial declaration of the

law’s meaning prospectively.” See Gutierrez-Brizuela

v. Lynch, 834 F.3d 1142, 1151 (10th Cir. 2016) (Gorsuch, J., concurring).

The BIA understands Brand X in precisely that

manner. As EOIR has explained, this Court’s decision

in Brand X created “an important opportunity” for the

BIA to “reclaim Chevron deference” and construe “ambiguous statutory provisions in the immigration laws,

notwithstanding contrary judicial interpretations.”

See Board of Immigration Appeals: Affirmance Without Opinion, Referral for Panel Review, and Publication of Decisions as Precedents, 73 Fed. Reg. 34,654,

34,661 (June 18, 2008) (emphasis added). The Attorney General has expressed similar views. Matter of RA-, 24 I. & N. Dec. 629, 631 n.4 (Op. Att’y Gen. 2008)

(explaining that “the Board itself appears to have recognized” that it is no longer “bound to apply existing

circuit precedent” in “cases involving the interpretation of ambiguous statutory provisions”); see also

Gutierrez-Brizuela, 834 F.3d at 1150 (Gorsuch, J., concurring) (citation omitted) (explaining that, under

Brand X, “a judicial declaration of the law’s meaning

in a case or controversy before it is not ‘authoritative,’

but is instead subject to revision by a politically accountable branch of government”).

3. The BIA has aggressively employed Brand X to

reject judicial precedent, resulting in excess litigation

that wastes judicial resources.19

For instance, after the Ninth Circuit in Lin v. Gonzales, 473 F.3d 979, 982 (9th Cir. 2007), rejected the

BIA’s view of the “departure bar” regulations in 8

C.F.R. §§ 1003.2(d) and 1003.23(b)(1), the Fifth Circuit

remanded a case to the BIA for it to reconsider its view.

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

647, 650 (B.I.A. 2008). The BIA refused to do so; rather, citing Brand X, the BIA “respectfully decline[d]”

to follow the Ninth Circuit’s decision in Lin and declared that it would continue to apply its own “understanding of the regulation” and do so “even within the

Ninth Circuit.” Id. at 653.20 The circuits have since

19 See, e.g., Matter of Ortega-Lopez, 27 I. & N. Dec. 382, 385–87

(B.I.A. 2018) (rejecting the Ninth Circuit’s interpretation of 7

U.S.C. § 2156(a)(1) and concluding that sponsoring or exhibiting

an animal in an animal-fighting venture is “a crime involving

moral turpitude”); Matter of D-R-, 27 I. & N. Dec. 105, 112 (B.I.A.

2017) (rejecting the Ninth Circuit’s interpretation of 8 U.S.C.

§ 1182(a)(6)(C)(i) and exercising “authority” under Brand X to

“define the term ‘material’ * * * in cases arising in the Ninth Circuit”); Matter of Fajardo Espinoza, 26 I. & N. Dec. 603, 605–07

(B.I.A. 2015) (rejecting the Ninth Circuit’s interpretation of 8

U.S.C. § 1229b(a)(2) and concluding that a grant of Family Unity

Program benefits does not constitute an “admission” to the

United States).

20 True to its promise, the BIA issued unpublished decisions

within the Ninth Circuit in which it disclaimed federal authority

to reopen proceedings for previously departed aliens. See Matter

of Salgado-Valenzuela, No. AXXX-XX2-297, 2009 WL 4030445

(B.I.A. Nov. 10, 2009); Matter of Sanchez Esquivel, No. AXXXXX7-884, 2009 WL 3250485 (B.I.A. Sept. 18, 2009); Matter of

Haro-Perez, No. AXXX-XX5-273, 2009 WL 2171613 (B.I.A. July 9,

2009); Matter of Alvarez-Briseno, No. A021-611-209, 2009 WL

773178 (B.I.A. Feb. 27, 2009); Matter of Estrada, No. AXXX-XX8863, 2008 WL 5025206 (B.I.A. Oct. 27, 2008) (per curiam).

unanimously rejected the BIA’s reading. See Santana

v. Holder, 731 F.3d 50, 61 (1st Cir. 2013); Prestol Espinal v. Att’y Gen., 653 F.3d 213, 218 (3d Cir. 2011); William v. Gonzales, 499 F.3d 329, 334 (4th Cir. 2007);

Garcia-Carias v. Holder, 697 F.3d 257, 264 (5th Cir.

2012); Contreras-Bocanegra v. Holder, 678 F.3d 811,

819 (10th Cir. 2012) (en banc); Lin v. Att’y Gen., 681

F.3d 1236, 1241 (11th Cir. 2012); cf. Luna v. Holder,

637 F.3d 85, 100 (2d Cir. 2011) (finding departure bar

an impermissible contraction of the BIA’s jurisdiction);

Pruidze v. Holder, 632 F.3d 234, 240–41 (6th Cir.

2011) (same); Marin-Rodriguez v. Holder, 612 F.3d

591, 594–95 (7th Cir. 2010) (same).

A similar pattern occurred when the Attorney General outlined a new “administrative framework” for

evaluating whether an immigrant has been convicted

of a “crime involving moral turpitude.” Matter of SilvaTrevino, 24 I. & N. Dec. 687, 688–89 (Op. Att’y Gen.

2008) (charactering the case law as a “patchwork of

different approaches”). Citing Brand X, the Attorney

General rejected the case law of 10 circuits (and 50

years of agency precedent). Id. Within a few years,

however, several circuits had rejected the Attorney

General’s framework. See Olivas-Motta v. Holder, 746

F.3d 907, 911–16 (9th Cir. 2013); Prudencio v. Holder,

669 F.3d 472, 480–84 (4th Cir. 2012); Fajardo v. Att’y

Gen., 659 F.3d 1303, 1307–11 (11th Cir. 2011); JeanLouis v. Att’y Gen., 582 F.3d 462, 472–82 (3d Cir.

2009). Eventually observing that Silva-Trevino had

not fostered uniformity, the Attorney General receded

from it. Matter of Silva-Trevino, 26 I. & N. Dec. 550,

552 (Op. Att’y Gen. 2015).

Experience with Brand X in the immigration context

suggests that, rather than fostering the orderly administration of the law, it leads to an increase in litigation

that wastes judicial resources. This seems a natural

consequence of allowing administrators to reject federal case law overturning their decisions. To the extent

that this is required by Brand X, it gives further reason to hesitate before continuing to accord Chevron

deference to the BIA.

CONCLUSION

For the foregoing reasons, the judgment of the court

of appeals should be reversed.

Respectfully submitted,

CHARLES ROTH

NATIONAL IMMIGRANT

JUSTICE CENTER

208 South LaSalle Street,

Suite 1300

Chicago, IL 60604

(312) 660-1613

RUSSELL ABRUTYN

ABRUTYN LAW, PLLC

3765 12 Mile Road

Berkley, MI 48072

(248) 965-9440

JEAN-CLAUDE ANDRÉ *

ANDREW B. TALAI

KATELYN N. ROWE

MOHINDRA RUPRAM

SIDLEY AUSTIN LLP

555 West Fifth Street,

Suite 4000

Los Angeles, CA 90013

(213) 896-6000

jcandre@sidley.com

Counsel for Amici Curiae

July 3, 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.