# Amicus Curiae Brief — Holder v. Martinez Gutierrez

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0707%3A09

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2012
- **Citation:** 565 U.S. 1104

## Text

RECO “ia

ied Nos. 10-1542 and 10-1543 j pane 2 ont

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Brict re

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Supreme Court of the United States 7

ERIC H. HOLDER, JR., ATTORNEY GENERAL
Petitioner,

v.
CARLOS MARTINEZ GUTIERREZ,
Respondent.

ERIC H. HOLDER, JR., ATTORNEY GENERAL
Petitioner,
Vv.
DAMIEN ANTONIO SAWYERS,
Respondent.

On Writ of Certiorari
to the United States Court of Appeals
for the Ninth Circuit

BRIEF OF THE NATIONAL IMMIGRATION
JUSTICE CENTER AS AMICUS CURIAE IN
SUPPORT OF RESPONDENTS

CHARLES ROTH JEFFREY T. GREEN*
DIRECTOR OF LITIGATION SIDLEY AUSTIN LLP
NATIONAL IMMIGRANT 1501 K Street, N.W.

JUSTICE CENTER Washington, D.C. 20005
208 S. LaSalle Street (202) 736-8000
Suite 1818 jereen@sidley.com
Chicago, [IL 60604
312-660-1613 SARAH O’ROURKE SCHRUP

NORTHWESTERN UNIVERSITY
SUPREME COURT PRACTICUM

375 East Chicago Ave.
Chicago, IL. 60611
(312) 503-8576
Counsel for Amicus Curiae
December 21, 2011 * Counsel of Record

Ss
VWaLsOn-EPES PRINTING Co., Inc. — (202) 789-0096 — WASHINGTON, D.C. 20002" «© ~*~
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TABLE OF CONTENTS

TABLE OF AUTHORITIES ........................00000008
INTEREST OF AMICUS CURIAE......00000000000....
SUMMARY OF ARGUMENT ......00....... eee eens

I. SHOULD THE COURT FIND THE

STATUTORY UANGUAGE AMBIGUOUS,
A REMAND .35 NECESSARY BECAUSE
BIA HAS NOT SET FORTH A
RATIONALKY THAT WOULD INVOKE
ID cenienintdemconeisssanvecsmeinenassuienmnnseiin

. THE COURT OUGHT TO HESITATE
BEFORE APPLYING BRAND X TO THE
BOARD OF IMMIGRATION APPEALS ....

Ill. ASUBSTANTIAL QUESTION EXISTS AS

TO WHETHER BIA’S ADJUDICATORY
DECISIONS WARRANT CHEVRON
TAT TOE

A. The BIA Generally Makes Rules With
No Input From the Public or From
i

B.The BIA Has Comparatively Limited
Subject Matter Expertise.........................

C.The BIA Lacks the Resources to
Adequately Provide Legal Guidance on
Issues Affecting Thousands.....................

D.In Aguirre-Aguirre, the Court Was Not
Presented With Arguments Against

Chevron Deference, and That Decision
I

13

13

17

21

24

ss

TABLE OF CONTENTS—continued

CONCLUSION

TABLE OF AUTHORITIES
CASES Page
Aguilera-Enriquez v. INS, 516 F.2d 565
I a 15
Arobelidze v. Holder, 653 F.3d 513 (7th Cir.
ESE SR sos ae nen enn Ree ee 24
Baltazar—Alcazar v. INS, 386 F.3d 940 (9th
SEAGRASS aE aT nat een mD 22
Benslimane v. Gonzales, 430 F.3d 828 (7th
Sa HTT insiiesiaiidereatbnidliiiiedeidiitiiibiciiasibiiamaisdiaaitians 22
Cajun Elec. Power Coop., Inc. v. F.E.R.C.,
924 F.2d 1132 (D.C. Cir. 199})................. 5
Chen v. U.S. Dep’t of Justice, 426 F.3d 104
REESE SRR ces eee 23
Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837
LE a 1, 3, 4
Coyt v. Holder, 593 F.3d 902 (9th Cir.
ESLER Renee LN Ee a, aE ED 8,9
Fajardo v. U.S. Atty. Gen., 659 F.3d 1303
I, 10
Fiadjoe v. Att’y Gen., 411 F.3d 135 (3d Cir.
ERROR eRe ae ase aoe BRE See nS eee 22
Guardado-—Garcia v. Holder, 615 F.3d 900
I 10
Hines v. Davidowtiz, 312 U.S. 52 (1941)..... 11
INS v. Aguirre-Aguirre, 526 U.S. 415
ELAR SESS LE Aas aaa yl cee fe 24
INS v. Orlando Ventura, 537 U.S. 12
ee Ce I vicccctencncscnsccicensinecnceces 6
Jean-Louis v. Ait’y Gen., 582 F.3d 462 (3d
Oe a a 10, 16
Judulang v. Holder, No. 10-694, 2011 WL
6141311 (U.S. Dec. 12, 2011)..........0000000... 24

Kadia v. Gonzales, 501 F.3d 817 (7th Cir.
I 22

iV

TABLE OF AUTHORITIES—continued

Page
Kleindienst v. Mandel, 408 U.S. 753 (1972) 11
Lopez-Umanzor v. Gonzales, 405 F.3d 1049
I i 22
Luna v. Holder, 637 F.3d 85 (2d Cir. 2011). 9
Marin-—Rodriguez v. Holder, 612 F.3d 591
EES ence 9
Martin v. Occupational Safety & Health
Rev. Comm'n, (499 U.S. 144 (1991))......... 18
Mehboob v. Att’y Gen., 549 F.3d 272 (3d
a it 10
National Cable & Telecommunications
Ass'n v. Brand X Internet Services, 545
8 Ef EE ae weer Oe et
Negusie v. Holder, 555 US. 511
REESE SS eee AE es one ee aS 2, 5, 6, 24
Ng Fung Ho v. White, 259 U.S. 276 (1922).. 23
Niam v. Ashcroft, 354 F.3d 652 (7th Cir.
ERE SESE ener nar et aaa RED SEIN 22
Peter Pan Bus Lines, Inc. v. Fed. Motor
Carrier Safety Admin., 471 F.3d 1350
RSS nO SO Ta 5
Prestol Espinal v. Att’y Gen., 653 F.3d 213
al 9
Pruidze v. Holder, 632 F.3d 234 (6th Cir.
cian i tah tl 9
Restrepo v. Att’y Gen. of U.S., 617 F.3d 787
I i i 19
Reyes—Torres v. Holder, 645 F.3d 1073 (9th
SIEGE sce meneame meme Sem 9
SEC v. Chenery Corp., 332 U.S. 194 (1947) 5
Sosnouskaia v. Gonzales, 421 F.3d 589 (7th
RESTRIC Te En en ee ee OO 22
Soumahoro v. Gonzales, 415 F.3d 732 (7th
Ee 23

Vv

TABLE OF AUTHORITIES—continued

Page
Ssali v. Gonzales, 424 F.3d 556 (7th Cir.
Sk arial celieeeeuaa uasaeliladdadeiiaeeiaaieieisnahinaess 23
Uanreroro v. Gonzales, 443 F.3d 1197 (10th
an, SIT iii cnsdsaideddeiainigepenpnindtinaddebiotnanshaniiiines 23
United States v. Ascencion-Carrera, 413 F.
BS GE Ge GE. BOI) ccnecccncccscccsseccesences 19
United States v. Chapa-Garza, 243 F.3d
I a aealinaie 18
United States v. Mead Corp., 533 U.S. 218
SII ilk seeeerienioncdueabueimiemnanemmanehiogs 13, 17, 22, 24
Wang v. Att’y Gen., 423 F.3d 260 (3d Cir
IT isieicnictionsciendsbiiahdniamiantianieaiemeneandiiiies 23
William v. Gonzales, 499 F.3d 329 (4th Cir.
a re a een ad 9
CONSTITUTION, STATUTES, AND
REGULATIONS
U.S. Const. Article I, § 8, cl. 4...................... 11
Oe ic cccccnicomscsonencncens 20
8 C.F.R. § 1003.1(b) (2009)........................... 17
BD Grate Oh BD COD ccvcecccncccconcccncsecces 17
Federal Aviation Act of 1958, Pub. L. No.
I A 18
Federal Mine Safety and Health
Amendments Act of 1977, 30 U.S.C. §
SD aibtinsciaints i aictlilaldecalaaieediaaniaindiaaneinimaiiadapiiagnittgate 18
Occupational Safety and Health Act of
1970, 29 U.S.C. §§ 651-678 ......ececccceeceeees 18
8 U.S.C. § 1101(a)(43) ......-cececececceceeeceeeeeeee 18, 19
ee I os ccnccinscenelimesininieninonle 21
Be i ccednnenncencaresncehscevioniecasucntens 19
8 U.S.C. § 1229b(a)(1) and (2).................0.... 2,4
8 U.S.C. §§ 1252(a)(2)(B), (a)(2)(C).............. 23

BP se SINE tiiiaiatcccinincsniednnsiseniiviiosiosiemcins 18

vl
TABLE OF AUTHORITIES—continued

Page
ADMINISTRATIVE DECISIONS
In re A., 41. & N. Dec. 723 (BIA 1952)........ 5
In re Aik Wong a.k.a. Bingqin Wang, 2010
WL 3027539 (BIA July 2, 2010) ........... 8, 9, 10
In re Agustin Gandai Ajavon, 2009 WL
1799957 (BIA May 29, 2009) .................... 8, 10
In re Alyajzi, 25 I. & N. Dec. 397 (BIA
TD cicccontisnvcnisinistisisiiniligagaatieagenisimemnmianaionie 14
In re Armendarez-Mendez, 24 Il. & N. Dec.
OG Ge ID deticinsicecstnetsscnnisncaicinnicnsinn 7,9
In re Assaad, 23 I. & N. Dec. 553
CEE HITED incviccisnrninitcininedsciisnimaidemmamaiaaaanl 15
In re Aurelio, 19 I. & N. Dec. 458 (BIA
TID wecissicevieniniscnsinnesisacigniiaieammnns 5
In re Bautista, 25 I. & N. Dec. 616 (BIA
IES Fn 14
In re Benito Estrada, 2008 WL 5025206
OT es 7,9
In re Castillo-Padilla, 25 I. & N. Dec. 257
GA TED decicoststinetnisnsstnticimaseieiaions 14
In re Compean, 24 1. & N. Dec. 710 (BIA
IIIS cecnscssnnisesineiscciiniiusiiiscamamsinta aaa 15
In re Diaz and Lopez, 25 |. & N. Dec. 188

CEE TED ccissctsictscnisiincisintintinilalgicntaadaliiicedanelies 7
In re Escobar, 241. & N. Dec. 231 (2007).... 4
In re Garcia Arreola, 25 I. & N. Dec. 267

CEA GD canccinsctatécsntaiietidensemmiiaanieiaiiiels 14
In re Gilberto Salgado-Valenzuela, 2009

Wr en Gi ictinscnisiicticiinntittindnaniabendiieiedantumene 7,9
In re Gomez-Gomez, 23 I. & N. Dec. 522

CN BI crsisccticiniseccecicdnvissenntnadiameediidaianiaia 15

In re Guevara Alfaro, 25 I. & N. Dec. 417
Ie: Be venssintnseveentcntannsensbiasemmemeimaaiamade 7

Vil

TABLE OF AUTHORITIES—continued

In re Jesus Haro-Perez a.k.a. Jesus Jose
Harro, 2009 WL 2171613 (BIA July 9,
a siameumnoenes

In re Jorge Alberto Mora-Saucedo a.k.a.
George Albert Saucedo a.k.a. Georget A.
Saucedo a.k.a. George Alberto Mora-
Saucedo, 2010 WL 1607035 (BIA March
NE

In re Juan Manuel Alvarez-Briseno, 2009
WL 773178 (BIA February 27, 2009) .......

In re Karina J. Alvarez-Fernandez a.k.a.
Karina J. Alvarez, 2009 WL 638928 (BIA
a EE

In re Lemus-Losa, 24 1. & N. Dec. 373

TTT cihichniniinimuereresonesteneerseusestossccosese
Ee

ST aiaaibdginornssnsinénesnenescesereveceontens
TTT saiissdinsnnionesainenbasiniececsesrooscosccosenee

hE a
In re Ng, 12 I. & N. Dec. 411 (BIA 1967).....
In re Oscar Padilla, 2008 WL 5477687

EL aR
In re Ponce De Leon, 21 I. & N. Dec. 154

so cousmmnntonns
In re Puente, 22 1. & N. Dec. 1006 (BIA

1999), rev'd Matter of Ramos, 23 I. & N.

a ceesenenenee
In re R-A-, 241. & N. Dec. 629 (BIA 2008)..
In re Ramirez-Vargas, 24 1. & N. Dec. 599

ES EE

Page

TABLE OF AUTHORITIES—continued
Page
In re Ramon Roberto Huerta-Flores a.k.a.
Roberto Huerta, 2010 WL 5808899 (BIA
SE Ss, tee ntdinecnticnnenninoibisutilinnedictiiototes 14
In re Ruben Dario Sanchez Esquivel a.k.a.
Ruben Dario Sanchez-Equivel a.k.a.
Ruben Dario, 2009 WL 3250485 (BIA
I, Bis ee ceccntcncnnanentadeientiebanitntatneninn 7,9
In re S-K-, 23 1. & N. Dec. 936 (BIA 2006) .. 15
In re Sawyers, File: A44 852 478, 2007 WL

4711443 (BIA Dec. 26, 2007) .................... i)
In re Saiful Islam, 25 I. & N. Dec. 637 (BIA
SUITE ccicasansadeemtnamidnachedammaisemianadammmenadmeds 7
In re Silva-Trevino, 24 I. & N. Dec. 687
I ciiitaiitnnndticatiincctaaegismieemimesinnals 7,10, 16
In re Smirko, 23 1. & N. Dec. 836 (BIA
i iniccononniihaintismsiiinibiciiiidiniticasceeaisisuanmenadidinaan 15
In re Velazquez-Herrera, 24 I. & N. Dec.
I es 10, 16

In re Y-C-, 23 1. & N. Dec. 286 (BIA 2003) .. 15

SCHOLARLY AUTHORITIES

Darren H. Weiss, Comment, 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)................--........ 21

Evan H. Caminker, Precedent and
Prediction: The Forward-Looking Aspects
of Inferior Court Decisionmaking, 73 Tex.

Bs Cs Oe I icc iulintcietcteceneciniintahninatiineccsminianen ll

Jaya Ram)i-Nogales, Andrew I.
Schoenholtz & Philip G. Schrag, Refugee
Roulette: Disparities in’ Asylum
Adjudication, 60 Stan. L. Rev. 295 (2007) 19

ix
TABLE OF AUTHORITIES—continued

Page

George Robert Johnson, Jr., The Split-

Enforcement Model: Some Conclusions

from the OSHA and MSHA Experiences,
39 Admin. L. Rev. 315 (1987) ................... 17

Margaret H. Taylor, Refugee Roulette in an

Administrative Law Context: The Deja vu

of Decisional Disparities in Agency
Adjudication, 60 Stan. L. Rev. 475 (2007) 17

Richard A. Posner, The Problems of
Jurisprudence 224 (1990) ............2....0000000- 11

OTHER AUTHORITIES

Board of Immigration Appeals: Affirmance
Without Opinion, Referral for Panel
Review, and Publication of Decisions as
Precedents, 73 Fed. Reg. 34,654 (June 18,
SIT acconidsisiaishinsssuniueitsetbestibaniidaadaininatiindmiadandusmniea 8

Dep’t of Homeland Sec., Statement of
Regulatory Priorities, 75 Fed. Reg.
79536-01, 2010 WL 5677733 (Dec. 20,
SUT scesscebnnctabieierinhidcneiincaniiucieiamibaaabaadidaaaiataniians 13

Executive Official for Immigration Review,

U.S. Dep’t of Justice, FY 2007 Statistical
Yearbook (2008), available at
http://www.usdoj.gov/eoir/statspub/fy07s

I cchtetcceinidiataadineieainadeesdmapeniiaiadaiidaiaasats 15
Executive Office of Immigration Review,
News and Information,
http://www .justice.gov/eoir/press/newsinf
o.htm (last visited Dec. 20, 2011)............. 13

Executive Office of Immigration Review,
http://www.justice.gov/eoir (last visited
Ee _:_ RIETRE En geE ae NEE TEST 13

xX

TABLE OF AUTHORITIES—continued

Randall Monger and James Yankay,
Annual Flow Report, March 2011: U.S.
Legal Permanent Residents: 2010,
available at
http://www.dhs.gov/xlibrary/assets/statist
ics/publications/Ipr_fr_2010.pdf ...............

TRAC Immigration, [Illegal Reentry
Becomes Top Federal Charge (June 10,
2011),
http://trac.syr.edu/immigration/reports/2
LE RUE re toe eee ERE Te

U.S. Dep’t of Homeland Sec., Office of
Citizenship and Immigration Services
Ombudsman, Waivers of Inadmissibility:
Additional Improvements Needed to
Enhance the Current Filing Process and
Minimize Reluctance to File (June 10,
2010), available at
http://www.dhs.gov/xlibrary/assets/cisom
b_waivers_of_inadmissibility_recommen
ALARA Yi te ne

U.S. Dep’t of Justice, FY10 Statistical Year
Book (Jan. 2011), available ai
http://www .justice.gov/eoir/statspub/fy 10

Page

20

18

20

I ioiapiscinpeitesinnsccistieiacneniaasaiicsiibiiniahina nant ediadinaiiaiegs 14, 20

U.S. Sentencing Guidelines Manual §
Be D
U.S. State Dep’t, Report of the Visa Office
2010, Table I, Immigrant’ and
Nonimmigrant Visas Issued at Foreign
Service Posts Fiscal Years 2006-2010,
avatlable at
http://www.travel.state.gov/visa/statistics
Jota tention BRED Dita ........ccccccccccocssccssccescees

INTEREST OF AMICUS CURIAE

Heartland Alliance’s National Immigrant
Justice Center (NIJC) is a non-profit organization
headquartered in Chicago, Illinois. NIJC has been
accredited by the Board of Immigration Appeals
(“BLA”) since 1980. NIJC provides education and
representation to low-income immigrants, asylum
seekers, and refugees, including survivors of domestic
violence, victims of crimes, detained immigrant
adults and children, and victims of human
trafficking, as well as immigrant families and other
non-citizens facing removal and family separation. In
2010, though its staff attorneys and its network of
over 1000 pro bono attorneys, NIJC provided legal.
services to more than 10,000 non-citizens.

NIJC promotes respect for human rights and access
to justice for immigrants, refugees, and asylum
seekers through policy advocacy, impact litigation,
and public education. NIJC has a deep interest in the
fairness of the BIA review process, as well as in
protecting the opportunity of noncitizens like the
Petitioners to seek discretionary relief from removal.

SUMMARY OF THE ARGUMENT

Lurking below the prominently argued questions of
statutory interpretation in this case are complicated
questions of how deference to the Board of
Immigration Appeals (“Board”) ought to function.

The Ninth Circuit analyzed the question below
under the familiar Chevron test, as elaborated on by
this Courts decision in National Cable &
Telecommunications Associations v. Brand X Internet
Services, 545 U.S. 967 (2005). See Chevron U.S.A.
Inc. v. NRDC, 467 U.S. 837, 842—43 (1984). However,

2

this aspect of the lower courts approach was
erroneous. The published Board decisions which the
lower court analyzed under Chevron engaged in a
straightforward “plain language” analysis of §
1229b(a) (1) and (2). Under this Court’s decision in
Negusie v. Holder, 555 U.S. 511, 523 (2009), agency
decisions are not entitled to Chevron deference where
they erroneously reach a plain meaning statutory
interpretation and a court finds the statutory text
ambiguous. The Board has not purported to choose
one interpretation over other plausible choices;
indeed, the Board’s previous case law provides some
reason to believe that it might adopt the imputation
rule urged by Respondents. As the BIA offered no
rationale for the result other than a plain language
reading, the Court’s case law calls for remand if the
Court finds the statutory provisions ambiguous.

If the Court were to find that the Board’s
precedential decision-making qualified for Chevron
deference, it would then confront a _ novel
circumstance of an administrative law court
purporting to overturn an Article III court under the
authority of Brand X. Amicus submits that Brand X
is particularly problematic as to administrative law
bodies such as the Board. While Brand X deference
always entails some separation of powers questions,
those tensions are heightened in the immigration
context, where the executive has a role distinct from
the legislative, and where the Constitution places
immigration matters squarely in the hands of
Congress. Worse, the institutional integrity of the
federal court system is implicated when the power to
overrule Article III courts is given to administrative
law judges. Amicus would urge against Brand X
deference for agencies such as the Board.

3

To the extent that the Court concludes that Brand
X necessarily follows from Chevron deference to the
Board, the Court should revisit whether Chevron
deference is appropriate as to the Board of
Immigration Appeals in the first place. The Board
occupies an unusual role within the administrative
law world. It does not operate openly; it maintains no
public docket, rarely invites outside participation
before issuing precedential decisions, and does not
even make its rare oral arguments publicly known. It
operates in a dual-enforcement context wherein it
possesses no rulemaking authority of its own, does
not itself enforce the immigration laws, and possesses
no authority to overrule regulations promulgated by
other related agencies. It suffers from a lack of
resources which has led to a slew of poorly reasoned
published and unpublished decisions. It decides
nearly 40,000 cases per year, selecting approximately
0.1% of those cases for publication. Its criteria for
publication are not publicly revealed. It is often
called upon to interpret provisions of the Immigration
and Nationality Act which the federal courts are
simultaneously forced to interpret in the criminal
context. If the Court were to revisit the propriety of
the appropriate style of deference to the Board,
Amicus submits that the Chevron framework would
be inappropriate.

ARGUMENT

I. SHOULD THE COURT FIND THE
STATUTORY LANGUAGE AMBIGUOUS, A
REMAND IS NECESSARY BECAUSE BIA
HAS NOT SET FORTH A RATIONALE
THAT WOULD INVOKE DEFERENCE

The parties urge that the statutes in question have
a plain meaning under “step one” of Chevron U.S.A.

4

Inc. v. NRDC, 467 U.S. 837, 842—43 (1984), after
application of traditional canons of construction. Cf.
Br. for Pet’r, 33; Br. for Resp’t, 37 (10-1543). The
Board of Immigration Appeals also ruled on plain
meaning grounds. When the Board found that a
parent’s period of residence cannot be imputed to a
child for the purpose of satisfying the eligibility
requirements contained in 8 U.S.C. § 1229b(a)(1) and
(2), it did so based on the “clear language of the
statute” and the “clear intent of Congress.” In re
Escobar, 24 1. & N. Dec. 231, 234 (2007) Gnterpreting
§ 1229b(a)(1)); see also In re Ramirez-Vargas, 24 1. &
N. Dec. 599, 600 (BIA 2008) (relying on Escobar and
interpreting § 1229b(a)(2)). The Board believed its
interpretation was compelled by the statute’s plain
meaning, and conducted a typical step one analysis.
See, e.g., In re Martinez, 25 1. & N. Dec. 66, 74-75
(BIA 2009) (“In ascertaining the plain meaning of a
statute, we consider the particular statutory
language at issue, its context, and the language and
design of the statute as a whole.”

If the Court reaches the question of deference
under Chevron, it will have already determined that
the statute is ambiguous—that it lacks a plain
meaning. See Chevron, 467 U.S. at 84243
(instructing courts to defer to reasonable agency
interpretations only when the intent of Congress is
not clear or unambiguous). Thus, in order for the
Court to reach the second “step” of Chevron, it must
implicitly recognize that the stated basis for the
Board’s ruling in Ramirez- Vargas was erroneous.

It is no answer to say that the Board’s “refusal” to
read imputation into the statute would have been
reasonable under Chevron if the Board had
attempted to construe an ambiguous statute. Cf. Br.
or Pet’r at 34. The Board did not simply decline to

5

exercise its discretion to read imputation into the
statute; instead, the Board believed it lacked such
discretion in the first instance.

Even if the Board’s interpretation would have been
permissible had it found the statute to be ambiguous,
it is a “simple but fundamental rule of administrative
law” that courts can “judge the propriety” of agency
action “solely by the grounds invoked by the agency.”
SEC v. Chenery Corp., 332 U.S. 194, 196 (1947).
Application of this administrative law rule is
particularly sensible here, where the Board’s case law
gives some reason to believe that the agency might
permit imputation from parent to child if it believed
that the statutory text could support that approach.
See, e.g., In re Ng, 12 1. & N. Dec. 411, 412 (BIA
1967); In re A., 41. & N. Dec. 723, 725 (BIA 1952): cf.
In re Aurelio, 19 I. & N. Dec. 458 (BIA 1987)
(imputing intent of parents to child).

Amicus understands the Court to have adopted a
rule that “deference to an agency's interpretation of a
statute is not appropriate when the agency wrongly
believes that interpretation is compelled by
Congress.” Peter Pan Bus Lines, Inc. v. Fed. Motor
Carrier Safety Admin., 471 F.3d 1350, 1354 (D.C. Cir.
2006) (citations and internal quotation marks
omitted). In Negusie v. Holder, 555 U.S. 511, 523
(2009), the Court quoted with approval the holding in
Cajun Elec. Power Coop., Inc. v. F.E.R.C., 924 F.2d
1132, 1136 (D.C. Cir. 1991) (opinion by Silberman, J.,
joined by R. Ginsburg and Thomas, JJ.), that “if an
agency erroneously contends that Congress’ intent
has been clearly expressed and has rested on that
ground, we remand to require the agency to consider
the question afresh in light of the ambiguity we see.”
The Negusie Court quoted that language for the
proposition that deciding a matter unaddressed by

6

the Board of Immigration Appeals would be “in
tension with” the ordinary remand rule. 555 U.S. at
523. As that proposition was the basis for the Court’s
decision, cf id. at 534 n.5 (Stevens, J., concurring in
part and dissenting in part), it constitutes part of the
holding of that case.

Thus, to the extent that the Court finds it
necessary to reach step two of Chevron, Negusie
requires application of the “ordinary remand rule” so
that to the Board may exercise its discretion in the
first instance. 555 U.S. at 523 (“Having concluded
that the BIA has not yet exercised its Chevron
discretion to interpret the statute in question, the
proper course, except in rare circumstances, is to
remand to the agency for additional investigation or
explanation.” (citations and internal quotation marks
omitted)); see also INS v. Orlando Ventura, 537 U.S.
12, 17 (2002) (per curiam) (explaining that the
ordinary remand rule applies where an agency “can
bring its expertise to bear upon the matter; it can
evaluate the evidence; it can make an initial
determination; and, in doing so, it can, through
informed discussion and analysis, help a court later
determine whether its decision exceeds the leeway
that the law provides’).

If the Court finds the statutory texts at issue herein
to lack a plain meaning, the Court would then
confront the issue of the Board's authority under
Brand X. While the Court need not resolve the
question today, it will likely arise on remand, and the
Court may find it prudent to provide some guidance
to the lower courts on this point.

7

Il. THE COURT OUGHT TO HESITATE
BEFORE APPLYING BRAND X TO THE
BOARD OF IMMIGRATION APPEALS

The Courts decision in National Cable &
Telecommunications Association v. Brand X Internet
Services, 545 U.S. 967 (2005), appears to permit
agencies to overturn or reject’ statutory
interpretations adopted by the federal courts, when
the agencies issue decisions which carry the force of
law. See id. at 1017 (Scalia, dissenting). Indeed, the
Board has so interpreted Brand X, having cited it in
dozens of cases, and employed it in published! and
unpublished cases? to reject federal court decisions in
cases arising within those circuits.

1 Jn re Armendarez-Mendez, 24 |. & N. Dec. 646, 653 (BIA
2008) (rejecting Lin v. Gonzales, 473 F.3d 979 (9th Cir. 2007)
within the Ninth Circuit); Jn re Silva-Trevino, 24 I. & N. Dec.
687 (BIA 2008) (overturning 50 decades of BIA jurisprudence
and case law of ten circuits); Jn re Diaz and Lopez, 25 1. & N.
Dec. 188 (BIA 2010) (rejecting Acosta v. Gonzales, 439 F.3d 550
(9th Cir. 2006) within Ninth Circuit); In re Guevara Alfaro, 25 I.
& N. Dec. 417 (BIA 2011) (rejecting Quintero-Salazar v. Keisier,
506 F.3d 688 (9th Cir. 2007) under authority of Silva-Trevino,
notwithstanding intervening circuit authority from Eighth and
Third Circuits rejecting the analysis in that decision); Jn re
Saiful Islam, 25 |. & N. Dec. 637 (BIA 2011) (refusing to apply
Nason v. INS, 394 F.2d 223 (2d Cir. 1968) within the Second
Circuit).

2 See In re Benito Estrada, File: A092 408 863, 2008 WL
5025206 (BIA Oct. 27, 2008) (unpublished) (rejecting Lin v.
Gonzales, supra, within Ninth Circuit); In re Juan Manuel
Alvarez-Briseno, File: A021 611 209, 2009 WL 773178 (BIA Feb.
27, 2009) (unpublished) (same); In re Jesus Haro-Perez a.k.a.
Jesus Jose Harro, File: AO92 515 273, 2009 WL 2171613 (BIA
July 9, 2009) (unpublished) (same); In re Ruben Dario Sanchez
Esquivel a.k.a. Ruben Dario Sanchez-Equivel a.k.a. Ruben
Dario, File: A035 727 884, 2009 WL 3250485 (BIA Sept. 18,
2009) (unpublished) (same); In re Gilberto Salgado- Valenzuela,

8

Further, the agency has openly adopted a policy of
employing Brand X widely, in order to assert
executive authority:

The Supreme Court's decision in Brand X
Internet offers an important opportunity for
the Attorney General and the Board to be able to
reclaim Chevron deference with respect to the
interpretation of ambiguous statutory provisions
in the immigration laws, notwithstanding
contrary judicial interpretations.

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) (cited with
approval in In re R-A-, 24 I. & N. Dec. 629 (BIA
2008).

File: A041 392 297, 2009 WL 4030445 (BIA Nov. 10, 2009)
(unpublished) (same); Jn re: Aik Wong a.k.a. Bingqin Wang, File:
A098 270 087, 2010 WL 3027539 (BIA July 2, 2010)
(unpublished) (same, notwithstanding intervening decision in
Coyt v. Holder, 593 F.3d 902 (9th Cir. 2010), which the Board
found inapplicable); In re Oscar Padilla, File: AO73 868 045,
2008 WL 5477687 (BIA Dec. 8, 2008) (unpublished) (rejecting
Cuevas-Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir. 2005)
within Ninth Circuit); In re Karina J. Alvarez-Fernandez a.k.a.
Karina J. Alvarez, File: A046 941 394, 2009 WL 638925 (BIA
Feb. 24, 2009) (unpublished) (applying Silva-Trevino within
llth Cir.); In re Agustin Gandai Ajavon, File: A028 202 026,
2009 WL 1799957 (BIA May 29, 2009) (unpublished) (applying
Silva-Trevino within Third Circuit, notwithstanding Mehboob v.
Att’y Gen., 549 F.3d 272 (3d Cir. 2008)); In re Jorge Alberto
Mora-Saucedo a.k.a. George Albert Saucedo a.k.a. Georget A.
Saucedo a.k.a. George Alberto Mora-Saucedo, File: A305 933
369, 2010 WL 1607035 (BIA March 29, 2010) (unpublished)
(applying Silva-Trevino within Ninth Circuit notwithstanding
Marmolejo-Campos v. Holder, 658 F.3d 903, 910 (9th Cir. 2009)).

9

The unpublished Board decision in Sawyers, below,
File: A44 852 478, 2007 WL 4711443 (BIA Dec. 26,
2007), appears to be the first decision in which Board
employed Brand X to reject a federal court decision
for a case arising within that circuit.

The impact of this new, muscular policy has been
significant. When the Board rejects heretofore
binding circuit authority, it leads to increased federal
court litigation. For instance, in Jn re Armendarez-
Mendez, 24 I. & N. Dec. 646, 653 (BIA 2008), the
Board declined to apply Lin v. Gonzales, 473 F.3d 979
(9th Cir. 2007) within the Ninth Circuit. The Board’s
interpretation of its regulations was rejected in court
after court,3 but the developing weight of contrary
authority left the Board unconvinced.4 The Ninth
Circuit ultimately rejected the Board’s position again,
Reyes—Torres v. Holder, 645 F.3d 1073, 1077 (9th Cir.
2011), but not before the Board had disclaimed
authority to reopen proceedings in numerous
unpublished decisions.5 The Westlaw database is not

3 William v. Gonzales, 499 F.3d 329, 332 (4th Cir. 2007);
Marin—Rodriguez v. Holder, 612 F.3d 591, 594-95 (7th Cir.
2010); Coyt, 593 F.3d 902; Pruidze v. Holder, 632 F.3d 234, 237—
38 (6th Cir. 2011); Luna v. Holder, 637 F.3d 85 (2d Cir. 2011);
Reyes—Torres v. Holder, 645 F.3d 1073, 1077 (9th Cir.2011);
Prestol Espinal v. Att’y Gen., 653 F.3d 213 (3d Cir. 2011).

4 See In re: Atk Wong a.k.a. Binggin Wang, 2010 WL 3027539
(unpublished) (finding the Ninth Circuit’s intervening authority
in Coyt, 593 F.3d 902 to be distinguishable).

5 See In re Benito Estrada, 2008 WL 5025206 (unpublished);
In re Juan Manuel Alvarez-Briseno, 2009 WL 773178
(unpublished) (same); In re Jesus Haro-Perez a.k.a. Jesus Jose
Harro, 2009 WL 2171613 (unpublished) (same); In re Ruben
Dario Sanchez Esquivel a.k.a. Ruben Dario Sanchez-Equivel
a.k.a. Ruben Dario, 2009 WL 3250485 (unpublished) (same); In
re Gilberto Salgado-Valenzuela, 2009 WL 4030445

10

a comprehensive list of Board decisions; and it is
unknown how many people were prejudiced by the
Board’s approach. Many noncitizens are financially
unable to engage in the appellate litigation which
would be necessary to vindicate the precedent of the
court of appeals.

The point is not that the Board is invariably wrong
when it disagrees with a Court of Appeals’
interpretation; but that the Board’s expansive view of
Brand X has consequences for the federal court
system. To take another example, in Silva-Trevino,
the Attorney General overturned established case law
in every circuit except for the Seventh Circuit. See Jn
re Velazquez-Herrera, 24 1. & N. Dec. 503, 513 (BIA
2008). Therefore, under Brand X, the Board applied
Silva-Trevino within the Third Circuit, see In re
Agustin Gandai Ajavon, 2009 WL _ 1799957
(unpublished), even after post-Silva-Trevino circuit
precedent adhered to the categorical approach.
Mehboob v. Att’y Gen., 549 F.3d 272 (3d Cir. 2008).
The Board’s stance required the Third Circuit to re-
re-affirm its adherence to the categorical test for
ascertaining moral turpitude. Jean-Louis v. Ait’y
Gen., 582 F.3d 462 (3d Cir. 2009); accord, Guardado—
Garcia v. Holder, 615 F.3d 900, 902 (8th Cir. 2010)
(adhering to categorical test); Fajardo v. U.S. Atty.
Gen., 659 F.3d 1303, 1310-11 (11th Cir. 2011) (same,
finding Silva-Trevino contrary to Congressional
intent). It is the nature of Brand X in this context to
lead to re-litigation of issues seemingly resolved at
the Court of Appeals level.

The Board basically shares Justice Scalia’s
understanding of Brand X that “[e]ven when the

(unpublished) (same); In re Atk Wong a.k.a. Binggin Wang, 2010
WL 3027539 (unpublished).

11

agency itself is party to the case in which [a] Court
construes a statute, the agency will be able to
disregard that construction and seek Chevron
deference for its contrary construction the next time
around.” Brand X, 545 U.S. at 1017.

Aside from the constitutional issues noted in the
Brand X dissent, see id. (citing Chicago & Southern
Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103,
112-13 (1948)), the approach has particular
significance in the immigration context. The
constitution gives Congress a leading role in
regulating immigration within the United States,
U.S. Const. art. I, § 8, cl. 4, see, eg., Hines v.
Davidowitz, 312 U.S. 652, 69-70 (1941), but
immigration may also implicate national sovereignty,
international relations, and defense powers. See, e.g.,
Kleindienst v. Mandel, 408 U.S. 753, 765 (1972)
(citing Fong Yue Ting v. United States, 149 U.S. 698
(1893). Permitting executive agencies power to reject
the “best interpretation” Brand X, 545 U.S. at 983
(Scalia, J, dissenting), of a Congressional statute
allows the executive to expand its authority at the
expense of Congress. Brand X thus threatens the
delicate balance between the Congress and the
Executive as well as relations between the Judiciaru
and the Executive.

At a practical level, application of Brand X in this
context would allow administrative law judges to
effectively overrule courts which have reversed them.
The Court need not be blind to the odd psychology
this would involve; surely no judge likes being
reversed. See, e.g., Evan H. Caminker, Precedent and
Prediction: The Forward-Looking Aspects of Inferior
Court Decistonmaking, 73 Tex. L. Rev. 1, 77-78 (1994)
(discussing reasons why district court judges dislike
being reversed on appeal); Richard A. Posner, The

12

Problems of Jurisprudence 224 (1990) (“[M]ost judges
are highly sensitive to being reversed”). As
understood by the agency, Brand X permits an
administrative law board whose decision has been
reversed (as to an ambiguous statute) to overturn the
reversal by the issuance of a new precedential
decision. This creates at best an untoward
appearance. Justice Scalia noted this in Brand X, see
545 U.S. at 1016-17 (Scalia, J., dissenting), but the
administration action in that case was a highly
technical administrative rulemaking, id. at 977-78,
not in the context of administrative judicial bodies
overruling Article III courts. Whatever the wisdom of
Brand X in heartland areas of administrative action,
it has a different mien applied to administrative law
bodies.

Unless an agency actually undertakes to overrule a
decision of this Court, the Brand X issue will be
resistant to the Court’s review. As in any agency case
that comes before the Court, this Court is not bound
by the lower court interpretation. Jd. at 1019-20
(Scalia, dissenting). (This is presumably why the
parties have declined to address the Brand X issue at
any length.) In any agency case that comes to the
Court, it will analyze the agency action under the
Chevron test, and Brand X issues would become
irrelevant by virtue of the grant of certiorari. The
institutional significance of Brand X will persist; and
this Court's legal interventions must necessarily
remain infrequent in comparison to the larger federal
docket.

Amicus sees three possibilities: (a) the agency's
approach is correct. and the BIA may overrule Article
III courts by issuing precedential decisions; (b) the
decision in Brand X may be interpreted not to apply
to quasi-judicial bodies like the BIA (or to the BIA

13

only, as sui generis); or (c) the Court may revisit
whether to grant Chevron deference to the Board.

lil. A SUBSTANTIAL QUESTION EXISTS AS
TO WHETHER BIA’S ADJUDICATORY
DECISIONS WARRANT CHEVRON
DEFERENCE

The Board’s peculiar administrative work does not
fit any of the rationales that underlie Chevron’s
strong deference to agency rulemaking and expertise.
Should the Court find Chevron deference implicated
by this case, Amicus urges the Court to rule that
Chevron deference should not apply to BIA decisions.
Given the poor fit between the Board’s activities and
Chevron’s reasoning, only so-called “Skidmore
deference” should be accorded to the Board’s juridical
decisions. See United States v. Mead Corp., 533 U.S.
218, 239 (2001) (quoting Skidmore v. Swift & Co., 323
U.S. 134, 139 (1944)).

A. The BIA Generally Makes Rules With No
Input From the Public or From
Stakeholders.

Unlike federal administrative agencies acting
through public rulemaking, cf., eg., Dept of
Homeland Sec., Statement of Regulatory Priorities,
75 Fed. Reg. 79536-01, 2010 WL 5677733 (Dec. 20,
2010), the Board of Immigration Appeals maintains
no public docket. Nothing on its website, or in any
other publication, indicates any case or issue which is
under consideration for potential publication of a
precedential decision. Cf. Executive Office of
Immigration Review, http://www.justice gov/eoir (last
visited Dec. 20, 2011).

Even oral argument at the Board is not announced
publicly. Cf. Executive Office of Immigration Review,
News and Information,

14

http://www .justice.gov/eoir/press/newsinfo.htm (last
visited Dec. 20, 2011) (public statements by EOIR
during 2010 and 2011, including no mention of oral
argument in any case). Ora! argument, at any rate,
is quite rare. Since 2008, the Board appears to have
scheduled oral argument in only four cases. In re
Bautista, 25 I. & N. Dec. 616 (BIA 2011); In re Ramon
Roberto Huerta-Flores a.k.a. Roberto Huerta, File:
A092 444 014, 2010 WL 5808899 (BIA Aug. 27, 2010)
(unpublished); Jn re Castillo-Padilla, 25 1. & N. Dec.
257 (BIA 2010); In re Marcal Neto, 25 1. & N. Dec.
169, 171 (BIA 2010) (argument cancelled due to
inability of counsel to be present). During that four
year period, the Board and Attorney General issued
141 precedential decisions, and the Board decided at
least 104,976 cases. U.S. Dep’t of Justice, FY10
Statistical Year Book, at S1 (Jan. 2011), available at
http://www.justice.gov/eoir/statspub/fy 10syb.pdf

(numbers are for fiscal years 2008-2010, the last year
for which statistics are available). That is, oral
argument occurred in 2.1% of the published decisions
and in less than .001% of unpublished decisions.

From 2008 to the present, amicus curiae have
appeared in 11 of the Board’s published decisions
(less than 10%). Three of those cases involved the
overruling of earlier BIA decisions which had been
previously decided without amicus involvement,®
perhaps suggesting the utility of public involvement.
This level of amicus involvement is actually
substantially higher than the historical norm. From

6 In re Marcal Neto, 25 I. & N. Dec. 169 (overruling In re
Perez Vargas, 23 I. & N. Dec. 829 (BIA 2005)); In re Garcia
Arreola, 25 |. & N. Dec. 267 (BIA 2010) (overruling In re
Saysana, 24 1. & N. Dec. 602 (BIA 2008)); In re Alyajzi, 25 1. &
N. Dec. 397 (BIA 2011) (overruling in part Jn re Shanu, 231. &
N. Dec. 754 (BIA 2005)).

15

2002-2006 (during which period 88 precedential
decisions were issued), amicus curiae were involved
in only three published decisions (3.4% of the total).
In re Assaad, 23 I. & N. Dec. 553 (BIA 2003); In re
Smirko, 23 I. & N. Dec. 836 (BIA 2005); In re S-K-,
23 1. & N. Dec. 936 (BIA 2006). Indeed, during that
period, the Board issued as many published decisions
in cases involving pro se noncitizens’ as in cases
involving amicus curiae. In re Y-C-, 23 1. & N. Dec.
286 (BIA 2003) (asylum = application '§ by
unaccompanied minor); Jn re Gomez-Gomez, 23 |. &
N. Dec. 522 (BIA 2002) (finding removability of 8 year
old respondent established by clear and convincing
evidence and remanding for in absentia removal
order); In re Mejia-Andino, 23 I. & N. Dec. 533 (BIA
2002) (concerning propriety of service on minor
respondent 7 years of age). In none of the pro se
published cases — all involving minor respondents —
did the Board solicit amicus briefing or appoint
counsel.

7 In 2003, 48 percent of aliens were unrepresented in
proceedings before Immigration Judges. Executive Official for
Immigration Review, U.S. Dep’t of Justice, FY 2007 Statistical
Yearbook Gl, fig. 9. (2008), available at
http://www.usdoj.gov/eoir/statspub/fyO7syb.pdf. By 2006, that
number had decreased to 35 percent; it rose again to 42 percent
in 2007. Id. The percentage of aliens who were unrepresented
in their proceedings before the BIA itself fluctuated between 25
percent in 2007 and 22 percent in 2008. /d.; Executive Official
for Immigration Review, U.S. Dep’t of Justice, FY 2007
Statistical Yearbook Gl, fig. 9, Wi, fig. 30 (2008),
http://www _usdoj.gov/eoir/statspub/fy07syb.pdf. Noncitizens
before the BIA are not considered eligible for appointed counsel.
See In re Compean, 241. & N. Dec. 710, 714 (BIA 2009), rev'd, 25
I & N. Dec. 1 (BIA 2009); cf. Aguilera-Enriquez v. INS, 516 F.2d
565, 570 (6th Cir. 1975) (finding appointed counsel required by
Fifth Amendment in limited cases).

16

Indeed, even in counseled cases, the issues under
consideration are often opaque. For instance, in
Silva-Trevino, former Attorney General Mukasey
certified a BIA decision to himself, and then issued a
decision which overturned 50 years of BIA case law,
as well as case law in nearly every circuit in the
country. See In re Velazquez-Herrera, 241. & N. Dec.
at 513 (“For nearly a century, the Federal circuit
courts of appeals have held that ... the focus ... must
be on the crime of which the alien was convicted, to
the exclusion of any other criminal or morally
reprehensible acts he may have committed.”
(emphasis in original)). The attorney for Mr. Silva-
Trevino was not even advised that the case had been
certified to the Attorney General until months after
the certification. Br. for Petr 4-5, Silva-Trevino v.
Holder (5th Cir.) (11-60464) (on file with counsel)
(record contains emails to Immigration Court
certifying case in April 2007, but notice not sent to
counsel until August 2007). Counsel for Silva-Trevino
was not permitted to submit briefing, or even told of
the issues being considered by the Attorney General.
Jean-Louis, 582 F.3d at 471 n.11 (“the Attorney
General refused to identify the issues to be
considered, to define the scope of his review, to
provide a briefing schedule, or to apprise counsel of
the applicable briefing procedure. In fact, neither the
IJ decision nor the Attorney General's certification
order were made publicly available, thus denying
stakeholders, including immigrant and _ refugee
advocacy organizations, the opportunity to register
their views.”).

Granted, amicus briefs are only one way for the
public to be involved in a case, and are uncommon
even at the Courts of Appeals. Amicus is not arguing
here that agencies must issue statements to parties

17

or potential amici of issues under consideration. But
without some means of permitting public input, such
input cannot reasonably be expected. The result is
that the precedent-setting rules of the Board and
Attorney General are as far from traditional notice
and comment rulemaking or public agency hearings
as can be imagined. Cf. Mead Corp., 533 U.S. at 230
(‘fairness and deliberation ... should underlie a
pronouncement [having the force of law]”).

B. The BIA Has Comparatively Limited
Subject Matter Expertise.

Although the subject matter jurisdiction of the BIA
is limited,’ its adjudicatory nature gives it little
advantage over Article III courts, and the split
enforcement structure also undercuts any claim for
deference.

The DHS and BIA are distinct administrative
bodies that implement immigration policy in a split-
enforcement structure. The BIA is located within
the Department of Justice’s Executive Office for
Immigration Review (EOIR), where immigration
judges adjudicate removal cases."° In this split-

8 See Organization, Jurisdiction, and Powers of the Board of
Immigration Appeals, 8 C.F.R. § 1003.1(b) (2009) (setting forth
the limited nature of the BIA’s subject matter jurisdiction).

® See generally George Robert Johnson, Jr.. The Split-
Enforcement Model: Some Conclusions from the OSHA and
MSHA Experiences, 39 Admin. L. Rev. 316, 317-319 (1987).

‘© Enforcement by the DHS and BIA differs slightly from
typical split-enforcement agency structures because the
Secretary of Homeland Security and the Chairman (or a
majority of the Board) may refer cases to the Attorney General,
or the Attorney General May direct the BIA to refer cases. 8
C.F.R. § 1003.1(h) (2007). See Margaret H. Taylor, Refugee
Roulette in an Administrative Law Context: The Deja vu of

18

enforcement structure, the DHS enforces and
administers the law while the BIA adjudicates. This
is not unique to immigration law. Cf., e.g.,
Occupational Safety and Health Act of 1970, 29
U.S.C. §§ 651-678; Federal Mine Safety and Health
Amendments Act of 1977, 30 U.S.C. § 823; Federal
Aviation Act of 1958, Pub. L. No. 85-726, 72 Stat. 731.

The split enforcement structure militates against
giving the Board full Chevron deference. In Martin v.
Occupational Safety & Health Rev. Comm'n, (499
U.S. 144 (1991)), the Court held that in a split
enforcement structure, the rulemaking enforcement
agency had “readily identifiable structural
advantages” over the adjudicatory agency. Jd. at
152.!1 For instance, the Court found the enforcement
agency better able to “reconstruct the purpose of the
regulations in question,” because it promulgated
those regulations. Id.

The Board adjudicates with regard to a wide
variety of matters. For instance, the Board interprets
the aggravated felony definition at 8 U.S.C. §
1101(a)(43). See, e.g., In re Puente, 22 I. & N. Dec.
1006 (BIA 1999), rev’d, In re Ramos, 23 I. & N. Dec.
336 (BIA 2002). So do District Courts throughout the
country, because it is relevant to sentencing of
individuals convicted of Illegal Reentry under 8
U.S.C. § 1326, U.S. Sentencing Guidelines Manual §
2L.1.2(b)(1)(C) (2010); those decisions may be directly
appealed to the Courts of Appeals. See, e.g., United
States v. Chapa-Garza, 243 F.3d 921, 926 (5th Cir.

Decisional Disparities in Agency Adjudication, 60 Stan. L. Rev.
475, 484 (2007).

1! The Court in Martin presumed “that Congress intended to
invest interpretive power in the administrative actor in the best
position to develop these attributes.” Martin, 499 U.S. at 152.

19

2001). Illegal Reentry is one of the most common
convictions in the federal criminal system, accounting
for thousands of convictions annually. TRAC
Immigration, [legal Reentry Becomes Top Federal
Charge (June 10, 2011),
http://trac.syr.edu/immigration/reports/25 1/. The
Board appears to have no structural advantage over
the federal courts in interpreting the aggravated
felony statute. Yet the aggravated felony definition is
within the Immigration and Nationality Act, 8 U.S.C.
§ 1101(a)(43), amd some circuits have granted
deference to Board interpretations of those
provisions, see, e.g., Restrepo v. Att’y Gen. of U.S., 617
F.3d 787 (3d Cir. 2010), decisions which thereafter
define the scope of federal criminal sentences. See
United States vy. Ascencion-Carrera, 413 F. App’x 549
(3d Cir. 2011) (applying Restrepo’s holding on
sentencing appeal).

The Board adjudicates asylum applications; so does
USCIS’s Asylum Offfice, a specialized group of
adjudicators trained specifically in the handling of
asylum cases and as to techniques for interviewing
asylum claimants. Jaya Ramji-Nogales, Andrew I.
Schoenholtz & Philip G. Schrag, Refugee Roulette:
Disparities in Asylum Adjudication, 60 Stan. L. Rev.
295, 311, 381 (2007) (“[E]very new asylum officer
completes an intensive five-week basic training
course with testing. Each week, every regional office
conducts four hours of training on new legal issues,
country conditions, procedures, and other relevant
matters.... [A]Jsylum officers currently receive much
more initial and ongoing training than _ the
immigration judges.”).

The Board makes decisions regarding admissibility
under 8 U.S.C. § 1182, in the course of adjudicating
Adjustment of Status applications. See, e.g., In re

20

Lemus-Losa, 24 I. & N. Dec. 373 (BIA 2007). The
precise number of Adjustment cases adjudicated by
the Board is not publicly available, but in FY2010,
the Immigration Courts (of whose decisions a limited
number are appealed to the Board) granted 8,475
applications for Adjustment of Status. U.S. Dep’t of
Justice, FY10 Statistical Year Book, at R3 (Jan.
2011), available at
http://www.justice.gov/eoir/statspub/fylOsyb.pdf. By
contrast, USCIS approved over 550,000 applications
for Adjustment of Status and adjudicated more than
35,000 applications for waivers of inadmissibility.}”
The Secretary of State adjudicated 6.5 million visas
in fiscal year 2010.'5 These numbers dwarf the
numbers of cases handled by the Board.

The Board’s powers vis-a-vis regulations also
highlights the Board’s limited role. The Board of
Immigration Appeals does not itself issue regulations,
but rather, considers itself to be bound by
regulations. In re Moreno-Escobosa, 25 I. & N. Dec.
114 (BIA 2009); In re Ponce De Leon, 21 1. & N. Dec.
154, 158 (BIA 1996) (“A regulation ... has the force

12 See Randall Monger and James Yankay, Annual Flow
Report, March 2011: U.S. Legal Permanent Residents: 2010, at
2. available at
http://www.dhs.gov/xlibrary/assets/statistics/publications/Ipr_fr_
2010.pdf; U.S. Dep’t of Homeland Sec., Office of Citizenship and
Immigration Services Ombudsman, Waivers of Inadmissibility:
Additional Inprovements Needed to Enhance the Current Filing
Process and Minimize Reluctance to File at 8, Table D (June 10,
2010), available at
http://www.dhs.gov/xlibrary/asseta/cisomb_waivers_of_inadmissi
bility_recommendation_pdf.

13 See U.S. State Dep't, Report of the Visa Office 2010, Table I,
Immigrant and Nonimmigrant Visas Issued at Foreign Service
Posts Fiscal Years 2006-2010, available at
http://www.travel state.gov/visa/statistics/statistics_5240. html.

21

and effect of law as to this Board and Immigration
Judges.”). Regulations may be promulgated by the
Attorney General or by sister agencies. See, e.g., 8
C.F.R. § 103.7(b)(1) (setting application fees for inter
alia, applications for Adjustment of Status).

In short, Congress has given the Attorney General
controlling authority over the interpretation of the
immigration laws, 8 U.S.C. § 1103(a)(1), but the
Board exercises that authority on the basis of subject
matter expertise which is not unique or particularly
extensive. The current structural nature of the
Board would support a more limited form of deference
than Chevron deference.

C. The BIA Lacks the Resources to
Adequately Provide Legal Guidance on
Issues Affecting Thousands.

Immigration law is often said to be “second only to
the Internal Revenue Code in complexity.” Baltazar—
Alcazar v. INS, 386 F.3d 940, 948 (Sth Cir. 2004).
Yet the resources given the Board are
incommensurate with its responsibility to interpret
those provisions, particularly given their import to
many millions of individuals.

For example, in 2007, the Board’s eleven members
completed 35,393 appeals, amounting to
approximately 136 appellate decisions—over 12 per
member—per workday.’ In 2008, the number of
appeals increased by over eight percent, to 38,369.
Id. Even if the Board had the maximum number of
members allowed at the time (fifteen), each member

14 See Darren H. Weiss, Comment, 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,
917—18 (2010) (citing BIA sources).

22

would have been responsible for authoring over ten
appeal decisions per day. Id.; Cf. Mead Corp., 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 at an agency’s 46 scattered offices is
simply self-refuting.”).

It is not surprising, when Board members can
devote only between seven and ten minutes to each
case, that the Board has repeatedly issued flawed
decisions. See, e.g., Benslimane v. Gonzales, 430 F.3d
828, 829 (7th Cir. 2005) (noting that in the year
ending September 23, 2005, the Seventh Circuit
“reversed the [BLA] in whole or part in a staggering
40 percent of the 136 petitions to review the Board
that were resolved on the merits.”). As Judge Posner
has stated, the BIA’s failures “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
v. Gonzales, 501 F.3d 817, 821 (7th Cir.2007).

Examples of the BIA’s failure to observe even
“elementary principles of adjudication” litter the
Federal Reporter. Niam v. Ashcroft, 354 F.3d 652,
654 (7th Cir. 2004) (listing erroneous BIA decisions
from the Second, Seventh, Eighth, and Ninth
Circuits); see, e.g., Sosnovskaia v. Gonzales, 421 F.3d
589, 594 (7th Cir. 2005) (“the procedure that the
[immigration judge] employed in this case is an
affront to [petitioner's] right to be heard”); Fiadjoe v.
Att’y Gen., 411 F.3d 135, 154-55 (3d Cir. 2005) (the
immigration judge’s “hostile” and “extraordinarily
abusive” conduct toward petitioner “by itself would
require a rejection of his credibility finding”); Lopez-
Umanzor v. Gonzales, 405 F.3d 1049, 1054 (9th Cir.
2005) (“the [immigration judge’s] assessment of
Petitioner’s credibility was skewed by prejudgment,

23

personal speculation, bias, and conjecture”); Wang v.
Att’y Gen., 423 F.3d 260, 269 (3d Cir. 2005) (“the tone,
the tenor, the disparagement, and the sarcasm of the
[immigration judge] seem more appropriate to a court
television show than a federal court proceeding”). It
has made fatal mistakes when addressing facts. E.g.
Soumahoro v. Gonzales, 415 F.3d 732, 738 (7th Cir.
2005) (per curiam) (the immigration judge’s factual
conclusion is “totally unsupported by the record”);
Ssali v. Gonzales, 424 F.3d 556, 563 (7th Cir. 2005)
(the immigration judge’s “very significant mistake
suggests that the Board was not aware of the most
basic facts of [the petitioner's] case”); Chen v. U.S.
Dep't of Justice, 426 F.3d 104, 115 (2d Cir. 2005) (the
immigration judge’s finding is “grounded solely on
speculation and conjecture”). These decisions are
illustrative of a much larger number of examples
suggesting problems within the BIA.

The stakes in these cases are often of the highest
order. The instant cases, not atypically, involve
permanent exile from family, friends, longstanding
residence, and employment. See Ng Fung Ho v.
White, 259 U.S. 276, 284 (1922) (removal “may
result ...in loss of both property and life, or of all
that makes life worth living”). Asylum cases involve
stakes no less significant, as erroneous denial could
lead to torture, persecution, or death. Uanreroro v.
Gonzales, 443 F.3d 1197, 1208 (10th Cir. 2006).
Judicial review over individual immigration case
determinations is often severely restricted, see, e.g., 8
U.S.C. §§ 1252(a)(2)(B), (a)(2)(C), leaving the courts
unable to remedy injustices flowing from statutory
misinterpretations. In this context, the importance of
a fair reading of the laws can hardly be understated.

24

D. In Aguirre-Aguirre, the Court Was Not
Presented With Arguments Against

Chevron Deference, and- That Decision
Pre-Dates Mead.

When the Court decided INS v. Aguirre—Aguirre,
526 U.S. 415 (1999), the Court was not presented
with any substantive arguments against application
of the Chevron regime to the Board’s decisions in
immigration cases. Cf. Br. for the Resp’t, No. 97-
1754, 1999 WL 26721, at *29 (U.S. Jan. 21, 1999); Br.
Amicus Curiae of the Lawyers Comm. for Human
Rights in Support of the Resp’t, No. 97-1754, 1999
WL 23657 (U.S. Jan. 21, 1999); Brief for Amicus
Curiae in Support of the Resp’t, No, 97-1754, 1999
WL 26718 @Jan. 21, 1999). The only arguments
raised in that case were whether the lower court’s
analysis was consistent with Chevron. See Br. for the
Resp’t, 1999 WL 26721, at *29-30.

While the Court has described the application of
Chevron as “well settled,” Negusie, 555 U.S. at 516,
Aguirre-Aguirre is of fairly recent vintage, and
predates the Court’s decision in Mead Corp., 533 U.S.
at 236. Arobelidze v. Holder, 653 F.3d 513, 520 (7th
Cir. 2011). While several decisions of this Court have
relied Aguirre-Aguirre and Chevron, the precise level
of deference was rarely decisive. See, e.g., Judulang
v. Holder, No. 10-694, 2011 WL 6141311, at *7 n.7
(U.S. Dec. 12, 2011) (finding no effective difference
between review under Chevron and under the
Administrative Procedures Act). Reconsideration
would be appropriate at some poimt; and this case
may present an appropriate vehicle.

Adopting a lesser form of deferemce to the Board
would not resolve the adjudicatory problems of the
Board, but it would avoid the embarrassment to the
system which would be entailed when the federal

25

courts may be overruled by an administrative law
board, on the basis of hasty work, without public
exposure, on the basis of limited expertise, and with
gravely insufficient resources.

CONCLUSION

For the foregoing reasons, this Court should affirm
the decisions of the United States Court of Appeals

for the Ninth Circuit.

CHARLES ROTH

DIRECTOR OF LITIGATION

NATIONAL IMMIGRANT
JUSTICE CENTER

208 S. LASALLE STREET

SUITE 1818

Chicago, IL 60604

312-660-1613

Respectfully submitted,

JEFFREY T. GREEN*
SIDLEY AUSTIN LLP

1501 K Street, N.W.
Washington, D.C. 20005
(202) 736-8000
jgreen@sidley.com

SARAH O’ ROURKE SCHRUP
NORTHWESTERN UNIVERSITY
SUPREME COURT PRACTICUM
375 East Chicago Ave.
Chicago, IL 60611

(312) 503-8576

Counsel for Amicus Curiae

December 21, 2011

* Counsel of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0707%3A09. Public record. Not legal advice.