Amicus Curiae Brief — Kisor v. Wilkie, 139 S. Ct. 657 (2018) (No. 18-15)

Supreme Court brief2018

Ask Donna

What actually matters in this document.

Text

No. 18-15

Petitioner,

ROBERT L. WILKIE, SECRETARY OF VETERANS AFFAIRS,

Respondent.

On Writ of Certiorari

to the United States Court of Appeals

for the Federal Circuit

BRIEF FOR AMICI CURIAE

THE NATIONAL IMMIGRANT JUSTICE CENTER

AND THE AMERICAN IMMIGRATION LAWYERS

ASSOCIATION IN SUPPORT OF PETITIONER

CHARLES ROTH JEAN-CLAUDE ANDRE *

NATIONAL IMMIGRANT ANDREW B. TALAI

JUSTICE CENTER GERRY B. HIRSCHFELD

208 S. LaSalle Street, SIDLEY AUSTIN LLP

Suite 1300 555 W. Fifth Street,

Chicago, LL 60604 Suite 4000

(312) 660-1613 Los Angeles, CA 90013

(213) 896-6000

RUSSELL ABRUTYN jeandre@sidley.com

WILLIAM A. STOCK

AMERICAN IMMIGRATION DEREK A. WEBB

LAWYERS ASSOCIATION SIDLEY AUSTIN LLP

1331 G Street, N.W. 1501 K Street, N.W.

Suite 300 Washington, D.C. 20005

Washington, D.C. 20005 (202) 736-8000

(202) 507-7600

Counsel for Amici Curiae

January 31, 2019 * Counsel of Record

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................:0cecseeeeees

INTEREST OF AMICI CURIAE....................0-000+

INTRODUCTION AND SUMMARY OF THE

IIT.

THE COURT SHOULD OVERRULE AUER

BECAUSE IT EXCEEDS SEMINOLE

SRF 0 OUI CD sccencecenvsesensessentnamsonnennsins

THE MANY DISPARATE FORMS OF

SUBREGULATORY INTERPRETATION

TO WHICH AUER DEFERENCE APPLIES

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

A. A strong form of Auer deference does not

account for the many different forms of

subregulatory interpretation to which

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

B. The evils of Auer are most notable in

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

AUER DEFERENCE IS PERNICIOUS

WHERE QUASI-JUDICIAL AGENCIES

LIKE THE BIA INTERPRET REGULA-

TIONS THROUGH ADJUDICATION .........

A. Most circuits give Auer deference to the

BLA’s interpretation of ambiguous regu-

B. Affording Auer deference to BIA adjudi-

cations is particularly problematic .........

IIIT sinsenctaitanarecetccninndiaedsvianintatatiocarenuines

‘i

TABLE OF AUTHORITIES

CASES Page

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

Wal-Mart Stores, Inc., Fair Labor

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

a Se ciickiisciibcbisetabieneninntnaniatiinettemcaan 15, 16, 24

Ass'n of Bituminous Contractors, Inc. v.

Apfel, 156 F.3d 1246 (D.C. Cir. 1998)........ 16

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

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

Ti cinsciececiicicineiibantstiiatiaiitieiaigicigipitiiemtenidabphaiiie 23

oor ee ae ea 15

Cir. cook Sat SE 28

Bowles v. Seminole Rock & Sand Co., 325

I a reine 6, 7,8

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

RR EEESE SN EEESS S SE CPaIRCe seein 14

Christopher v. SmithKline Beecham Corp.,

ff ‘3, 26, 28

Coeur Alaska, Inc. v. Se. Alaska Conser-

vation Council, 557 U.S. 261 (2009).......... 14

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

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

STEED ccthinelicsninbeinisstinnsinbaigiommnelineiebilinneminiiet 20, 21, 27

RRL NR NR Rs BAER ae TAS 25

TABLE OF AUTHORITIES—continued

Page

Ehlert v. United States, 402 US. 99

ES RRS ee: 9

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

EEC 16

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

ES AA eae See SCRE Ce 29

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

| EIR eee oa AS Ne 10

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

EEE PE aR ae oe ON SCT 28

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

Tat csnictilnsslbaiiiesitientndasihceevetictidbeanmdihciitial a et 14

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

RRR oe Cres Parte « 23, 25, 29, 31

Gonzales v. Oregon, 546 U.S. 243 (2006)...... 13

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

SRE EEL Ae ACE el dS 24

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

Ea ee 24

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

On 16

Henry v. INS, 74 F.3d 1 (1st Cir. 1996)........ 31

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

LTE ES Ee 23

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

EERE a oe 21

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

SR aN Ra pee eee 29, 30

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

RE EES SASS nee eS 26

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

a 15

Jordan v. De George, 341 U.S. 223 (1951).... 29

TABLE OF AUTHORITIES—continued

Page

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

RNS RRC Pr Sen nor ee ee 25

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

RRR SS IRE < Ae Oe <a 29

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

A ee ee 23

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

STI ccciecticheciabeincigeeiinishligatiettdliiiea ee dieaanaaiaeatianae 23

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

Sr iscensesiahtiatnceiamlieerinediitinaat tiie nies 17

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

i asiscictisbbelichienetintinteninisiabentieatatasiepaiiuineniain 15

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

SEES PE a cena re 29

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

ERPS Ee ane em 25, 29

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

F.3d 961 (11th Cir. 2011)........................... 23

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

GUNIA, Siiiiilcciersinchisaealesediiiintceinisinitdbiaanbibindentains 31

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

| EE ee aan 25, 29

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

ai iets cacasiiabianniiages 14, 30

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

EERE SS SE Eee cea Pe 23

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

2014)....... ‘callie iaailaadidiaiie ichliatiatitibaeniaati 23, 25, 29

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

SSS SRI SERS IES. RA 25

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

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

TABLE OF AUTHORITIES—continued

Morgan v. United States, 304 US. 1

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

Workers’ Comp. Programs, 484 U.S. 135

Ge iscvconnscuiavcsenisnitidaitainaienbinianamisesaaitiommmmein 10

Natl Ass'n of Home Builders v. Defs. of

Wildlife, 551 U.S. 644 (2007)..................... 30

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

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

iy Bee ecctnintisntedcccnisnnnamadiideiptensiies 9

Ohio Valley Envtl. Coal. vy. Aracoma Coal

Co., 556 F.3d 177 (4th Cir. 2009) .............. 15

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

Ee tnacinssisihuaiiectctiaanisitidtnmsinainiianinaticias passim

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

IEE pceccisererincecenaniinesissiieadinbataiiiliiepasitinlmeaimns 23

Peters v. Hobby, 349 U.S. 331 (1955)............ 9

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

of Agric., 697 F.3d 1192 (9th Cir. 2012)... 16

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

F.3d 1093 (10th Cir. 2011)......................... 24

Reno v. Flores, 507 U.S. 292 (1993).............. 29

SEC v. Chenery Corp., 318 U.S. 80 (1943)... 31

Siskiyou Regl Educ. Project v. U.S. Forest

Serv., 565 F.3d 545 ‘es 5 15

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

IIIT cninuictirpiticitsipliiaanibdesatiiadsenaplashicihasiniimeiat citi 3, 5,6

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

50 (2011) ssenciusiamsiineabibaheiatsgubiaamandmmniiaatuloniiahis 3

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

Ge cin inchiincnuteheneeshinrttitinieeteacecaaignsa dicta 27

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

SEES rd 14

Udall v. Tallman, 380 U.S. 1 (1965) ............ 9

TABLE OF AUTHORITIES—continued

Page

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

ETL le ae eS 26

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

I 16

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

REN Se a 28

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

REE NS ee ee 24, 30

STATUTES AND REGULATIONS

I ll

a 22

EE 22

EEE ee ae 19

I EEE 22

Ee 19

ADMINISTRATIVE DECISION

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

CO 24

SCHOLARLY AUTHORITIES

Aditya Bamzai, Henry Hart's Brief, Frank

Murphy's Draft, and the Seminole Rock

Opinion, Yale J. Reg.: Notice & Comment

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

henry-harts-brief-frank-murphys-draft-

and-the-seminole-rock-opinion-by-aditya-

REESE ERE IE Ne onan 8

Cynthia Barmore, Auer in Action: Deference

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

I isieidihcitcaientniheseamicenicinat tei itindahneenassiineaenee 17

TABLE OF AUTHORITIES—continued

Page

Sanne H. Knudsen & Amy J. Wildermuth,

Unearthing the Lost History of Seminole

Rock, 65 Emory L.J. 47 (2015)................... 10

John F. Manning, Constitutional Structure

and Judicial Deference to Agency Interpre-

tations of Agency Rules, 96 Colum. L. Rev.

Ne tichnticinsistntiecinnssientinnesiniaitiantesimanitedt 21, 28

Jeffrey A. Pojanowski, Revisiting Seminole

ee ee 5

William Yeatman, Note, An Empirical

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

EP Uncihinntisbectinsittansndearuiennititimepitinstbbedmanes 16, 17

OTHER AUTHORITIES

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

Justice, Board of Immigration Appeals

Practice Manual, https://www_justice.gov/

eoir/page/file/1103051/download (last

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

Black’s Law Dictionary (10th ed. 2014) ....... 21

Tara Copp, As Many as 11,800 Military

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

www.militarytimes.com/news/your-

military/20 18/04/01/as-many-as- 1 1800-

military -families-face-deportation-issues-

vill

TABLE OF AUTHORITIES—continued

Jason Dzubow, Former BIA Chairman Paul

W. Schmidt on His Career, the Board, and

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

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

10/05/former-bia-chairman-paul-w-

schmidt-on-his-career-the-board-and-the-

Exec. Office for Immigration Review, U.S.

Dep’t of Justice, Board of Immigration

Appeals, https://www_justice.gov/eoir/

board-of-immigration-appeals (last

visited Jan. 31, 2019)...

Lisa Getter & Jonathan Peterson, Speedier

Rate of Deportation Rulings Assailed, 1..A.

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

latimes.com/2003/jan/05/nation/na-

i eee ee ee eee

immig5

US. Gov't Accountability Office, GAO-17-

to Reduce Case Backlog and Address

Page

TABLE OF AUTHORITIES—continued

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

Dep’t of Homeland Sec., PA-2018-09,

Policy Alert: Validity of Report of Medical

Examination and Vaccination Record

(Form 1-693) (2018), https://www.uscis.

gov/policymanual/U pdates/20 181016-I-

TIES Se a

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

Dep’t of Homeland Sec, PA-2014-005,

Policy Alert: Validity Period of the Medica!

Certification on the Report of Medical

Examination and Vaccination Record

(Form 1-693) (2014), https://www.uscis.

gov/policymanual/U pdates/20140530-I-

Page

I cenccccscsstnicciusenepunpatcnesncs 19, 20

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

Dep’t of Homeland Sec., PM-692-0091,

Policy Memorandum: Parole of Spouses,

Children and Parents of Active Duty

Members of the U.S. Armed Forces or

Selected Reserve of the Ready Reserve and

the Effect of Parole on Inadmissibility

under Immigration and Nationality Act §

212(aX(6)(A)G) (2013), https://www-.uscis.

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

randa/2013/2013-1115_ Parole in Place_

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

U.S. Armed Forces Members and

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

sites/default/files/publications/14_1120_

memo parole in place pdf........................

INTEREST OF AMICI CURIAE'

The National Immigrant Justice Center (“NIJC”) is

a program of the Heartland Alliance for Human Needs

and Human Rights, a non-profit corporation head-

quartered in Chicago, Illinois. NIJC is dedicated to en-

suring 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 immi-

grants.

The American Immigration Lawyers Association

(‘AILLA”) is a national association with more than

15,000 members throughout the United States, includ-

ing 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 per-

taining to immigration, nationality, and naturaliza-

tion; to cultivate the jurisprudence of the immigration

laws; and to facilitate the administration of justice and

elevate the standard of integrity, honor, and courtesy

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

Under Supreme Court Rule 37.6, amici curiae state that no coun-

sel for a party authored this brief in whole or in part, and no per-

tary contribution intended to fund the preparation and submis-

sion of this brief.

of those appearing in a representative capacity in im-

migration and naturalization matters. AILA’s mem-

bers practice regularly before the Department of

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

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

before the United States District Courts, Courts of Ap-

peals, and this Court.

INTRODUCTION AND

SUMMARY OF THE ARGUMENT

With the ever-increasing use of administrative regu-

lations to govern individual and corporate conduct and

confer and/or limit rights, various rules requiring judi-

cial deference to those regulations have also been in-

creasingly criticized by Members of this Court, judges

of the lower federal courts, and academics. The Court

has sensibly responded to this groundswell of criticism

by adding to its plenary docket for this Term several

implicating a handful of these deference rules: Gundy

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

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

Sex Offender Registration and Notification Act’s dele-

gation of authority to the attorney general to issue reg-

ulations violates the non-delegation doctrine); PDR

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

139 S. Ct. 478 (2018) (mem.) (No. 17-1705) (to be ar-

gued Mar. 25, 2019) (whether the Hobbs Act requires

a federal court to accept the Federal Communication

Commission's legal interpretation of the Telephone

Consumer Protection Act); and this case, which asks

whether the Court should overrule the doctrine that

makes an agency’s interpretation of its own ambiguous

regulation “controlling unless ‘plainly erroneous or in-

consistent with the regulation,” Auer v. Robbins, 519

U.S. 452, 461 (1997) (expanding on the standard orig-

inally articulated by Bowles v. Seminole Rock & Sand

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

Of the various deference rules, none has created as

much mischief as the Auer doctrine and, therefore, of

the various cases currently before the Court implicat-

ing deference to agencies, no case is as important as

this one. As Petitioner has explained, Auer deference

permits administrative “agencies to circumvent the

critical requirements of the APA,” adds “intolerable

unpredictability into the legal system,” and is “incom-

patible with the basic principle that the one who

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

25-26. Amici agree.

This mischief is not merely theoretical. Through

“subregulatory” interpretation, agencies can change

binding law “based on nothing more than a brief filed

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

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

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

59 (2011) (‘[Wle defer to an agency’s interpretation of

its regulations, even in a legal brief, unless the inter-

pretation is ‘plainly erroneous or inconsistent with the

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

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

Part I of this brief explains why amici agree with Pe-

titioner that this Court should overrule Auer. But Part

| also articulates an alternative basis for overruling

Auer, without overruling Seminole Rock. In particular,

Part I explains how, read carefully, Seminole Rock was

a straightforward application of the factors articulated

by this Court months earlier in Skidmore v. Swift

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

progeny for decades thereafter) recognized that courts

should defer to agency interpretations only if those in-

terpretations were valid readings of the regulation,

consistent with prior agency interpretations, and took

into consideration reliance interests. Auer should be

overruled, therefore, not because it reaffirmed Semi-

nole Rock, but because it severed Seminole Rock defer-

ence from its original anchoring in the Skidmore

framework that helped guarantee notice and prevent

arbitrariness in rulemaking.

Part II explains the practical problems that Auer has

wrought by compelling deference to diverse subregula-

tory interpretations offered in a host of different for-

mats (from regulatory preambles to non-binding inter-

nal memoranda to non-precedential decisions from

quasi-judicial adjudicators) in all kinds of regulatory

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

left a trap for the unwary, requiring regulated parties

to hunt for relevant subregulatory guidance and, if

they are lucky to find it, hope that the agency will con-

tinue to adhere to it.

Finally, because the greatest number of requests by

the government for Auer deference come in immigra-

tion cases arising from the BIA, Part III analyzes the

circumstances under which the courts of appeals will

grant Auer deference to BIA decisions (including non-

precedential, single-member decisions), and uses that

analysis to illustrate why granting Auer deference to

quasi-judicial agencies is particularly problematic.

ARGUMENT

I. THE COURT SHOULD OVERRULE AUER

BECAUSE IT EXCEEDS SEMINOLE ROCK

PRINCIPLES.

As Petitioner has explained, Auer is incompatible

with the Administrative Procedure Act because it al-

lows agencies to issue subregulatory interpretations

that bind the regulated public and the courts, but

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

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

to (sub)regulate without public notice and comment,

Auer has also injected intolerable unpredictability by

inviting the promulgation of vague regulations and

then compe!ling judicial deference to their subsequent,

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

has created serious separation-of-powers problems by

vesting the power to interpret vague regulations in the

same branch of government that promulgated them

while simultaneously curtailing the courts’ obligation

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

Amici agree with these rationales and believe them

sufficient to overrule Auer. But amici also would like

to put before the Court an alternative basis for over-

ruling Auer that focuses on a key, yet largely over-

looked, distinction between Auer and Seminole Rock

itself.

A careful review of the doctrinal context in which

Seminole Rock was decided reveals that it originally

had a far more modest and bounded significance that

this Court recognized in the decades after Seminole

Rock, but that the Auer Court did not sufficiently ap-

preciate. The real problem with Auer was therefore not

so much that it followed or reaffirmed Seminole Rock,

but that it took one piece of dicta from Seminole Rock

out of its larger doctrinal and historical context. In do-

ing so, it announced a rule of deference to agency in-

urpretations of regulations far more sweeping, cate-

gorical, and generous than Seminole Rock had origi-

nally recognized.

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

framework for according weight to agency interpreta-

tions announced by the unanimous Court just six

months earlier in Skidmore, 323 U.S. 134. See gener-

ally Jeffrey A. Pojanowski, Revisiting Seminole Rock,

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

1944, Justice Jackson, in writing for the Skidmore

Court, observed that courts may give weight to agency

interpretations on a case-by-case basis depending

upon “the thoroughness evident in its consideration,

the validity of its reasoning, its consistency with ear-

lier and later pronouncements, and all those factors

which give it power to persuade, if lacking power to

control.” Skidmore, 323 U.S. at 140. If agency interpre-

tations (1) accorded well with the text of the regulation

and demonstrated thorough reasoning and validity,

(2) were consistent with prior agency determinations,

and (3) provided adequate notice to regulated entities

and considered their reliance interests, then courts

would give those interpretations weight and defer to

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

decision, the Court did not silently repudiate the

larger framework that it had unanimously crafted six

months earlier and announce a new rule of unques-

tioning deference to agency interpretations. Rather,

Seminole Rock effectively applied the Skidmore frame-

work to the controversy at hand, and for decades there-

after, the Court applied that bounded Skidmore frame-

work when it was asked to defer to agency interpreta-

tions of their own regulations.

Most attention to Seminole Rock focuses on the fa-

mous statement that “the ultimate criterion is the ad-

ministrative interpretation, which becomes of control-

ling weight unless it is plainly erroneous or incon-

sistent with the regulation.” 325 U.S. at 414. But that

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

Court’s decision in Seminole Rock. Instead, the opera-

tive (though less sonorous) sentence that explained the

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

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

Regulation No. 188 and the consistent administrative

interpretation of the phrase ‘highest price charged

during March, 1942’ thus compel the conclusion that

respondent's highest price charged during March for

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

highest price charged for stone actually delivered dur-

ing that month.” /d. at 418 (footnote omitted). As re-

flected by that explanation, the Court considered sev-

eral of the Skidmore factors in according weight to the

agency's interpretation.

The Seminole Rock Court first considered the valid-

ity of the agency’s interpretation by carefully reading

what it called “the plain words” of the text of the regu-

lation itself: “Our only tools, therefore, are the plain

words of the regulation and any relevant interpreta-

tions of the Administrator.” Jd. at 414. The Court

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

might take into consideration “[t]he intention of Con-

gress or the principles of the Constitution.” Jd. And the

Court independently read those words of the regula-

tion and arrived at its own judgment of what it meant:

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

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

ceiling price for respondent's crushed stone.” /d. at

415.

Only after assuring itself that the agency comported

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

at the nature of the guidance documents issued by the

agency. And there it focused on the consistency and

notice provided by the agency’s interpretations. It un-

derlined the fact that the interpretive bulletin issued

by the Administrator had come out “concurrently” with

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

bulletin, entitled “What Every Retailer Should Know

About the General Maximum Price Regulations” was

made broadly available to manufacturers, wholesal-

ers, and retailers. Jd. It attributed significance to the

fact that the agency's position had “uniformly been

taken” by the Office of Price Administration “in the

countless explanations and interpretations given to in-

quirers affected by this type of maximum price deter-

mination.” Jd. at 417-18. And it grappled with, and dis-

posed of as factually irrelevant, purported examples of

agency inconsistency concerning its interpretation

provided by the respondent in the case. /d. at 418 n.9.

Seminole Rock thus applied the factors laid out in

Skidmore before according weight to the agency’s in-

terpretation of its own regulation. Despite the dicta,

the Court did not blindly defer to the agency’s inter-

pretation of its own regulation. Rather, it first per-

formed a searching, extended examination of the reg-

ulation’s text on its own. Jd. at 414-17. And when it

looked at the agency’s interpretation of the regulation,

it credited it only because it had been consistent with

prior agency statements, had been issued concurrently

with the regulation itself, and had been promulgated

publicly and broadly. It is then no surprise to learn

that the government’s brief in Seminole Rock, which

Justice Murphy largely followed in drafting the deci-

sion, cited Skidmore and argued that “the language of

the regulation compels the construction placed upon it

by the Price Administrator” which, since the begin-

ning, had been “consistently and repeatedly reaf-

firmed” in “[mlillions upon millions of individual

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

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

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

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

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

henry-harts-brief-frank-murphys-draft-and-the-semi-

nole-rock-opinion-by-aditya-bamzai/.

This Court’s decisions in the decades after Seminole

Rock provide additional evidence that it was not the

watershed decision that it has occasionally been made

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

1965, the Court cited Seminole Rock only once (in dis-

sent), and when the Court did cite it, the Court often

indicated that it stood for the rule that agency inter-

pretations would be accorded deference only if they

were consistent with prior interpretations, complied

with notice requirements, and did not interfere with

reliance interests.

Specifically, Justice Reed first cited Seminole Rock

along with several other cases in his dissent in Peters

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

a “reasonable interpretation promptly adopted and

long-continued” by the President and an administra-

tive agency should be respected by the courts. /d. at

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

1 (1965), the Court deferred to the Secretary of the In-

terior’s interpretation of two executive orders, citing

the fact that “the Secretary has consistently construed

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

interpretation has been made a repeated matter of

public record. While the Griffin leases and others lo-

cated in the Moose Range have been developed in reli-

ance upon the Secretary’s interpretation, respondents

do not claim to have relied to their detriment upon a

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

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

regulation contained some ambiguous language, the

Court cited Seminole Rock for the rule that that “we

are obligated to regard as controlling a reasonable,

consistently applied administrative interpretation if

the Government’s be such.” Jd. at 105. In Northern In-

diana Public Service Co. v. Porter County Chapter of

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

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

deferred to an agency interpretation because it was

“supported by the wording of the regulations and is

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

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

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

Federal Reserve Board staff interpretation in part be-

cause the staff had “consistently construed the statute

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

of Virginia v. Director, Office of Workers’ Compensa-

tion Programs, 484 U.S. 135 (1987), the Court upheld

under Seminole Rock the Secretary of Labor’s interpre-

tation regarding the burden of proof needed to invoke

a presumption of eligibility for black lung benefits, be-

cause it had been “with one exception, consistently

maintained through Board decisions” and had been a

“routine” feature of the standard of review in the

courts of appeals. /d. at 159-60.

The precise date when the dicta in Seminole Rock

came loose from the background doctrinal framework

of Skidmore is a matter of some scholarly debate. See

Sanne H. Knudsen & Amy J. Wildermuth, Unearthing

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

(2015). But as these cases indicate, this Court in Sem-

inole Rock and for decades thereafter applied Seminole

Rock deference against a background assumption that

the Skidmore factors of validity, agency consistency,

and notice must first be considered and met before a

court should accord deference to agency interpreta-

tions of regulations.

In Auer, however, the last threads of connection be-

tween Skidmore and Seminole Rock were finally sev-

ered. The Auer Court quoted the dicta from Seminole

Rock and expressly declared that to be a “deferential

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

announced its interpretation of the regulation for the

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

test is a creature of the Secretary [of Labor]’s own reg-

ulations, his interpretation of it is, under our jurispru-

dence, controlling unless ‘plainly erroneous or ‘ncon-

sistent with the regulation.” 519 U.S. at 461 (citing

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

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

preconditions that this Court had recognized in Semi-

nole Rock for deferring to agency interpretations. It re-

tained the punchline, but dropped the indispensable

setup. This failing in Auer is not just a matter of defi-

cient legal history, but of significant practical, real-

world import because the preconditions it ignored were

essential to fairness and due process in rule-making.

Auer departed from the baseline requirement in Sem-

inole Rock that courts defer to agency interpretations

only when they are at least persuasive in their own

right, consistent with prior agency interpretations,

and have been officially and widely published, such

that all regulated entities are on notice from the start.

Shorn of these basic requirements, Auer deference lib-

erates administrative agencies to be as arbitrary as

they want to be. They can provide a binding interpre-

tation years after a regulation is promulgated that is

not the best reading of the regulation, departs sharply

from previous agency interpretations, and is offered in

anticipation of (or during) litigation with regulated

parties who relied on a previous agency interpretation

(or just the most natural reading of the regulation it-

self), yet still prevail in court.

Such a permission slip removes transparency and

accountability from the rule-making process. Because

subregulatory interpretations are not subject to the

public notice and comment requirement under the

APA, 5 U.S.C. § 553(b)(A), the only step along the pro-

cess at which to pressure-test the soundness of these

interpretations is at the judicial review stage. But

Auer deference effectively defangs that stage, enabling

agencies to survive judicial review with a mere show-

ing that their latest interpretation is not “plainly erro-

neous.” Arranged thus, the rulemaking process re-

moves the burden from agencies critical to ensuring

transparency and accountability to either “pay now” at

the notice or comment period or “pay later” at the ju-

dicial review stage to show that their interpretations

are valid, consistent, and take reliance interests into

account.

Affording deference to such subregulatory interpre-

tations under these conditions promotes arbitrary gov-

ernment and tends to harm all regulated persons—cor-

porate and individual, and among individuals, partic-

ularly our nation’s immigrant community that amici

serve.

Il. THE MANY DISPARATE FORMS OF

SUBREGULATORY INTERPRETATION TO

WHICH AUER DEFERENCE APPLIES

HARM THE REGULATED PUBLIC.

As Petitioner correctly observes, “Auer allows an

agency to change the meaning of its regulations (in-

cluding reversal of pre-existing positions) * * * regard-

less whether the new interpretation is the best one.”

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

for public participation, or political accountability, ad-

ministrative agencies can change course midstream.

Id. at 22; see also Perez vy. Mortg. Bankers Ass'n, 135

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

judgment) (explaining that Auer deference “allows

agencies to change the meaning of regulations at their

discretion and without any advance notice to the par-

ties”).

Amici agree. Putting aside the incentives and sub-

jective motivations of agency rule-makers, amici direct

this Court’s attention to the profoundly harmful ways

that Auer deference impacts regulated entities and the

public at large. Auer permits agencies to dramatically

change the rules of the game with impunity, while

members of the regulated public—individuals, smal!

businesses, and corporations—are deprived of advance

warning and regulatory stability. Under the shadow of

Auer, entities and individuals have difficulty predict-

ing which rules will apply when agencies issue novel,

subregulatory interpretations that function as if they

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

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

doctrines of deference * * * have revolutionized the im-

port of interpretive rules’ exemption from notice-and-

comment rulemaking” because “[a]gencies may now

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

to bind them.”).

A. Astrong form of Auer deference does not

account for the many different forms of

subregulatory interpretation to which

courts have applied it.

Subject to two exceptions recently adopted by this

Court,? Auer purports to make an agency’s interpreta-

tion of its own ambiguous regulation “controlling un-

less ‘plainly erroneous or inconsistent with the regula-

tion.” 519 U.S. at 461. The Court made that broadly

phrased holding in the context of resolving a dispute

over the meaning of the Department of Labor's regula-

tions regarding an employee’s exemption from over-

time pay. Jd. at 455. The Court deferred to the Secre-

tary of Labor's interpretation set forth “in an amicus

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

Auer deference is inappropriate for agency interpretation of reg-

v. SmithKline Beecham Corp., 567 U.S. 142, 158-59 (2012) (deny-

ing Auer deference to agency interpretation of regulation that

failed to provide proper notice to regulated entities).

brief filed at the request of the Court” because the reg-

ulation at issue, “the salary-basis test,” “is a creature

of the Secretary's own regulations.” Jd. at 461. In fact,

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

also applied Auer deference to an “internal” agency

memorandum that “appears to have [been] written in

response” to the litigation at issue, see Long Island

Care at Home, Lid. vy. Coke, 551 U.S. 158, 171 (2007);

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

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

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

during the pendency of litigation, Thorpe v. Hous.

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

Together, the Court’s broad phrasing in Auer, cou-

pled with its willingness to defer to subregulatory in-

terpretations of which parties subject to the regulation

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

strong signal to the lower courts that subregulatory in-

terpretations meeting the “plainly erroneous or incon-

sistent” standard must receive controlling deference

“no matter how informal the pronouncement in which

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

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

ring).

Accordingly, requests by the government for Auer

deference have not been made just with respect to the

types of subregulatory interpretations that this Court

has seen. As a recent study shows, the courts of ap-

peals have applied Auer to: (1) an agency’s appellate

litigation position embodied in its own party brief;*

5 See, e.g., Drake v. FAA, 291 F.3d 59, 68 (D.C. Cir. 2002) (ap-

plying Auer deference to the Federal Aviation Administration's

interpretation of its own regulation advanced during litigation

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

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

(2) so-called “non-legislative” or “publication” rules is-

sued by agencies in letters, manuals, memoranda,

handbooks, program statements, bulletins, guidance

documents, and classifications;‘ (3) informal adjudica-

tions;® (4) non-textual interpretations;® (5) regulatory

2000) (finding for the Department of Defense and giving Auer def-

erence to “the interpretation advanced in the Department's

brief’).

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

F 3d 545, 548, 553-54 (9th Cir. 2009) (deferring to the interpreta-

tion of a “mining-related directive” set forth in a “Memorandum

to Regional Foresters” issued by the Forest Service); Belt v. Em-

Care, Inc., 444 F.3d 403, 415-16 (5th Cir. 2006) (applying Auer

deference to informal Department of Labor regulatory interpre-

tations contained in a nonbinding opinion letter, a Field Opera-

tions Handbook, and an amicus brief); Archuleta v. Wal-Mart

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

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

deference to the Department of Labor's opinion letters that ex-

plain how regulations related to the Fair Labor Standards Act

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

256, 277 (2d Cir. 2002) (applying Auer deference to the Environ-

mental Protection Agency's interpretation and application of the

“Standard Industrial Classification Manual in determining

whether heightened permitting requirements applied to a munic-

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

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

Highway Traffic Safety Administration's denial of a tractor-

trailer manufacturer's application for temporary exemption from

a tractor-trailer safety standard).

® See, e.g., Ohio Valley Envtl. Coal. vy. Aracoma Coal Co., 556

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

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

coal mining operations based on a history of “consistent adminis-

trative practice” and consistent reliance on Environmental Pro-

tection Agency guidance).

preambles;’ (6) litigation positions before administra-

tive adjudications;* (7) non-precedential adjudica-

tions, such as unpublished single-member decisions of

the Board of Immigration Appeals; (8) precedential

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

non-government parties asserting an agency’s prior in-

terpretation.'2 See generally William Yeatman, Note,

An Empirical Defense of Auer Step Zero, 106 Geo. L.0.

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

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

2016) (applying Auer deference to preamble to regulation pre-

scribing ERISA benefits claims procedures).

® See, e.g., Ass'n of Bituminous Contractors, Inc. v. Apfel, 156

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

Commissioner of the Social Security Administration's interpreta-

tion of the Coal Act where the Commissioner “consistently” inter-

preted the Act the same way at the administrative level).

® See Part III(A), infra.

of Agric., 397 F.3d 1285, 1296 (10th Cir. 2005) (deferring to a De-

partment of Agriculture Judicial Officer's interpretation of a reg-

ulation under Auer since the interpretation was neither plainly

erroneous nor inconsistent with prior determinations).

\' See, e.g., Pub. Lands for the People, Inc. vy. U.S. Deptt of

Agric., 697 F.3d 1192, 1199 (9th Cir. 2012) (applying Auer defer-

ence to a Forest Service decision, based on a 45-day comment pe-

riod, that limited motor vehicle access on certain roads in the EF!

Dorado National Forest).

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

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

Communications Commission's interpretation of the term “inter-

connection” in a suit between a commercial mobile radio service

and a local carrier challenging the approval of an interconnection

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

Stores, 395 F.3d at 1184-85 (applying Auer deference to the De-

partment of Labor's opinion letters in a suit brought by pharma-

cists against their employer for violations of the Fair Labor

Standards Act).

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

the application of Chevron, Auer, and Skidmore defer-

ence to these various forms of subregulatory interpre-

tation).

In fact, because Auer’s potential applicability is so

pervasive, one recent empirical study counted 429 ex-

amples of the courts of appeals applying Auer in pub-

lished (never mind unpublished) decisions between

1993 and 2013, with the government prevailing in 74%

of those cases.'* Jd. at 519, 536 n.124. And because

agency requests for Auer deference arise most in labor

and employment and immigration cases—in particu-

lar, immigration cases arising from the BIA, see Cyn-

thia Barmore, Auer in Action: Deference After Talk

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

the issue is of utmost important to amici.

B. The evils of Auer are most notable in

their effects on the regulated public.

Precisely because Auer applies to so many disparate

forms of subregulatory interpretation, the (sub)regu-

lated public lacks recourse to a stable body of rules.

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

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

through the procedures established by Congress for

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

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

'S Apparently emboldened by its success rate, the government

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

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

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

request by the Department of Justice's Office of Immigration Lit-

igation for Auer deference to the interpretations by the BIA—

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

regulations).

regulated parties often must retain experienced coun-

sel, or at minimum comb through poorly organized

government websites or have access to a legal-research

database for potentially relevant guidance (assuming

it is even in the public domain). Then, regulated par-

ties must guess whether administrative officials will

continue to apply those policies as political winds

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

when there is a change in Administrations.”). Auer def-

erence thus creates myriad traps for the unwary

across most—if not all—federally regulated contexts,

and, as amici have learned from experience, particu-

larly undermines “efficiency, fairness, and predictabil-

ity” in immigration law. Mellouli v. Lynch, 135 S. Ct.

1980, 1987 (2015).

Consider, for instance, subregulatory interpreta-

tions concerning parole and deferred action. In Novem-

ber 2013 and 2014, the DHS and US. Citizenship

& Immigvation Service (“USCIS”) adopted explicit

subregulatory memoranda governing parole consider-

ations for family members of individuals enlisted in

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

Sec., Families of U.S. Armed Forces Members and En-

listees (2014), https://www.dhs.gov/sites/default/files/

publications/14_1120_memo_parole_in_place.pdf;

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

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

Parole of Spouses, Children and Parents of Active

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

Reserve of the Ready Reserve and the Effect of Parole

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

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

Memoranda/2013/2013-1115_Parole_in_Place_ Memo

_.pdf. Although those policies remain officially in ef-

fect, see U.S. Citizenship & Immigration Servs., Dis-

cretionary Options for Military Members, Enlistees and

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

discretionary-options-military-members-enlistees-

and-their-families (last visited Jan. 31, 2019), Execu-

tive Branch officials have declined to apply their own

subregulatory policies as written. See Tara Copp, As

Many as 11,800 Military Families Face Deportation Is-

sues, Group Says, Mil. Times, https://www.military

times.com/news/your-military/20 18/04/0 1/as-many-as-

11800-military-families-face-deportation-issues-group

-says/ (Apr. 1, 2018) (“An earlier ‘parole in place’ pro-

gram that was previously championed by Vice Presi-

dent Mike Pence to give relief to military families i* no

longer being utilized due to stricter enforcement oi de-

portation proceedings under [President] Trump.”).

As another example, consider subregulatory policy

surrounding Form I-693 (a document used for report-

ing medical-examination results to USCIS). Under 8

U.S.C. § 1182(a)(1), any non-citizen “who is deter-

mined * * * to have a communicable disease of public

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

and ineligible to be admitted to the United States.”

Such visa applicants and applicants for admission

must submit a medical examination—using Form I-

693—from a “civil surgeon.” See 42 C.F.R. § 34.2(c).

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

as it was submitted promptly; if adjudication was de-

layed, the form’s validity was automatically extended.

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

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

Period of the Medical Certification on the Report of

Medical Examination and Vaccination Record (Form I-

693) (2014), https://www.uscis.gov/policymanual/

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

2014 Policy Aiert]. That approach was not dictated by

statute or regulation, as “USCIS historically has es-

tablished the validity period [for Form 1-693] by pol-

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

Dep’t of Homeland Sec., PA-2018-09, Policy Alert: Va-

lidity of Report of Medical Examination and Vaccina-

tion Record (Form 1-693) (2018), https://www-uscis.gov

/policymanual/Updates/20181016-1-693Validity.pdf.

But in 2014, USCIS suddenly changed its subregula-

tory “policy” to make Form 1-693 expire after one

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

solicit public comment. See 2014 Policy Alert, supra.

As amici could have predicted, adjudicative delays en-

sued and Form I-693’s expired in numerous cases. Ad-

mission was delayed while families and businesses ob-

tained new medical examinations (which generally

cost hundreds of dollars per case). Without warning,

the agency’s subregulatory policy imposed significant

costs on countless families and businesses.

These examples confirm that “Auer deference should

be set aside because it is fundamentally at war with

basic principles of predictability and public notice.”

Petr Br. 36-37. Regulatory deference may very well

motivate those who promulgate regulations to “speak

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

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

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

impact on the regulated, not the regulator. In this sub-

regulatory world, where agency discretion eclipses

fundamental fairness, rights will often rise and fall

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

Whatever the fate of Chevron and the broader admin-

istrative state, Auer serves only to insulate from judi-

cial review opaque rules promulgated by unaccounta-

ble officials according to unknowable methods.

Ill. AVER DEFERENCE IS PERNICIOUS

WHERE QUASI-JUDICIAL AGENCIES LIKE

THE BIA INTERPRET REGULATIONS

THROUGH ADJUDICATION.

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

to quasi-judicial agencies that interpret regulations

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

long recognized that, “in administrative proceedings of

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

by the rudimentary requirements of fair play.” Morgan

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

judicial garb, however, an administrative agency can

conduct binding adjudications that “change the mean-

ing of regulations * * * without any advance notice to

the parties.” Perez, 135 S. Ct. at 1221 (Thomas, J., con-

curring in the judgment); see also Decker, 568 U.S. at

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

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

the power to prescribe is augmented by the power to

interpret.”). Moreover, Auer deference shields the

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

mean” from plenary judicial review. John F. Man-

ning, Constitutional Structure and Judicial Deference

to Agency Interpretations of Agency Rules, 96 Colum.

L. Rev. 612, 654 (1996).

Amici submit that this regime is incompatible with

the “cherished judicial tradition embodying the basic

concepts of fair play,” Morgan, 304 U.S. at 22, particu-

larly in the immigration context. First, at the most

basic level, quasi-judicial agencies are not properly

“4 The term “quasi-judicial” refers to “an executive or adminis-

trative official's adjudicative acts.” Quasi-~Judicial, Black's Law

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

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

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

constituted to exercise judicial power. Second, and re-

latedly, quasi-judicial agencies are not better equipped

to interpret regulations, particularly considering fiscal

and operational constraints within the Executive

Branch. Third, the severity of deportation, as a pun-

ishment, counsels against abandoning fulsome judicial

review of regulatory interpretations. Amici illustrate

these flaws through an examination of the BIA, which

underscores why subregulatory interpretation

through quasi-judicial adjudication should be re-

viewed under traditional Skidmore principles.

A. Most circuits give Auer deference to the

BIA’s interpretation of ambiguous regu-

lations.

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

U.S.C. § 1101 et seq., and its implementing regula-

tions, 8 C.F.R. § 100.1 et seq., designate the process for

removing non-citizens from the United States. Gener-

ally, Immigration Judges (“IJs”) conduct initial re-

moval proceedings and the BIA reviews appeals from

removal orders. See 8 U.S.C. § 1229a(a)(1), (c)(5). Ac-

cording to the Department of Justice (“DOJ”), the ma-

jority of BLA appeals involve orders of removal and ap-

plications for relief from removal.'®

The BIA is a component of the DOJ’s Executive Of-

fice for Immigration Review, and is considered the

highest administrative body for interpreting immigra-

tion law. See Bd. of Immigration Appeals, U.S. Dep’t

of Justice, Board of Immigration Appeals Practice

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

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

tice, Board of Immigration Appeals, https://www_.justice.gov/eoir/

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

2018) [hereinafter BIA Practice Manual]. The BIA gen-

erally does not conduct courtroom proceedings or hear

oral arguments.'® Decisions are rendered either by a

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

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

are final, unless stayed, modified, rescinded, or over-

ruled by the Board, the Attorney General, or a federal

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

Decisions released in “published” form constitute bind-

ing precedent for the Board and the Immigration

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

But the vast majority of BLA decisions are unpublished

and, while binding on the parties, are not considered

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

Nearly every circuit has held that the BIA is entitled

to Auer deference when interpreting ambiguous immi-

gration regulations, unless “plainly erroneous or in-

consistent with the regulation.” See Auer, 519 U.S. at

461. As the Sixth Circuit has recently explained,

“we * * * afford substantial deference to [the BLA’s] in-

terpretation of the INA and accompanying regula-

tions,” the latter of which “are controlling unless

plainly erroneous or inconsistent with the regulation.”

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

Cir. 2018).'7

16 See note 15, supra.

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

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

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

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

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

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

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

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

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

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

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

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

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

sponte authority to reopen final removal proceedings.

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

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

“departure bar” deprived it of jurisdiction to consider

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

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

Second Circuit held that the BIA’s reading was not

“plainly erroneous” and thus denied the petition for re-

view. Id. The court explained that, although it was

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

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

obliged to note that “the BILA’s construction [wa]s any-

thing but airtight,” and restrained itself from

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

“Were we writing on a blanx slate,” the court empha-

sized, “we might reach a different conclusion.” Jd.'*

A majority of circuits apply Auer deference even to

unpublished single-member BIA decisions.'® In the

Chevron context, courts find that in issuing un-

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

619 (10th Cir. 2009).

'8Such reluctant deference is not unique to the immigration

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

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

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

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

395 F.3d at 1181-82 (deferring to the Department of Labor's defi-

nition of “salary” expressed in opinion letters even though “we

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

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

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

published decisions, “the BLA is not exercising its au-

thority to make a rule carrying the force of law, and

thus the opinion is not entitled to Chevron deference.”

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

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

F.3d 149, 154-56 (5th Cir. 2013). Yet in the Auer con-

text, many circuits find that “the BLA is entitled to sig-

nificant deference when it * * * interprets an immigra-

tion regulation in a single-member, nonprecedential

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

2016). They reason that, under Auer, “the agency’s in-

terpretations, even if relatively informal ***, are

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

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

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

to regulatory interpretation in an “unpublished BIA

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

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

Auer deference to an unpublished decision, despite rec-

ognizing “the potential for redundancy in the BLA’s in-

terpretation”).”

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

F.3d 518, 532 (9th Cir. 2011) (holding that a “one-member, non-

precedential, BIA order’ should be given “no deference under

Auer a8 an agency interpretation of a regulation”). As explained,

most circuits have similarly declined to apply Chevron to un-

published BIA decisions. See Joseph v. Holder, 579 F.3d 827, 833

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

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

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

Cir. 2006)).

B. Affording Auer deference to BIA adjudi-

cations is particularly problematic.

With this essential background in mind, amici sub-

mit that Auer deference is unjustified in the immigra-

tion context for at least three fundamental reasons.?'

1. Our constitutional system requires federal courts

to “exercise independent judgment in determining that

a regulation properly covers the conduct of regulated

parties.” See Perez, 135 S. Ct. at 1219 (Thomas, J., con-

curring in the judgment). Auer short-circuits that safe-

guard, demanding, instead, that judges defer to agency

interpretations that are not plainly erroneous or oth-

erwise inconsistent with the regulation. See Christo-

pher v. SmithKline Beecham Corp., 567 U.S. 142, 155

(2012). This deference doctrine therefore amounts to

“a transfer of the judge’s exercise of interpretive judg-

ment to the agency.” See Perez, 135 S. Ct. at 1219

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

The BIA’s exercise of quasi-judicial power is no ex-

ception. While Board Members and IJs are considered

“independent” adjudicators, see BIA Practice Manual,

ch. 1.2(c), they are, doubtless, components of the Exec-

utive Branch housed within DOJ and subject to over-

sight by the Attorney General. Significantly, these Ex-

ecutive Branch officials lack the “structural protec-

tions for independent judgment adopted by the Fram-

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

226-27 (2001) (holding that agency actions lacking requisite for-

mality, including interpretive rules, do not warrant Chevron def.

erence), the Court held that precedential BLA decisions interpret-

ing the Immigration and Nationality Act would receive Chevron

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

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

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

not urge the Court to address the issue.

ers”—4.e., Article LII’s life tenure and salary protec-

tions. See Perez, 135 S. Ct. at 1220 (Thomas, J., con-

curring in the judgment); Jason Dzubow, Former BIA

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

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

https://www.asylumist.com/2016/10/05/former-bia-

chairman-paul-w-schmidt-on-his-career-the-board-

and-the-purge-part-2/ (explaining dismissal of BIA

members due to the Attorney General’s disagreement

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

is “not properly constituted to exercise the judicial

power under the Constitution,” which suggests that

any “transfer of interpretive judgment raises serious

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

1220.

2. Complicated and technical regulatory matters of-

ten require expertise, along with the exercise of “judg-

ment grounded in policy concerns.” See Thomas Jeffer-

son Univ. v. Shalala, 512 U.S. 504, 512 (1994) (quoting

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

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

should promulgate regulations; but it says nothing

about “who should interpret regulations.” See Decker,

568 U.S. at 618 (Scalia, J., concurring in part and dis-

senting in part). Put another way: “[T]he purpose of

interpretation is * * * [njot to make policy, but to de-

termine what policy has been made.” Id. Federal

judges are up to that task, often more so that adminis-

trative agencies. See Perez, 135 S.Ct. at 1222-23

(Thomas, J., concurring in the judgment) (citing Mar-

bury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (“It

is emphatically the province and duty of the judicial

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

Auer deference is accordingly at its nadir when reg-

ulatory interpretations do not reflect the agency's “fair

and considered judgment on the matter in question.”

See SmithKline Beecham Corp., 567 U.S. at 155. Ex-

perience has taught that—given its crippling work-

load, inadequate funding, and ever-expanding backlog

of cases”*—the BIA is not sufficiently equipped to “say

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

Courts and commentators alike have recognized that,

in the immigration context, quasi-judicial adjudication

has “fallen below the minimum standards of legal jus-

tice.” Benslimane v. Gonzales, 430 F.3d 828, 829-30

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

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

per case. See Lisa Getter & Jonathan Peterson, Speed-

ier Rate of Deportation Rulings Assailed, L.A. Times

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

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

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

2 The backlog increased from approximately 212,000 cases

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

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

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

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

Actions Needed to Reduce Case Backlog and Long-Standing Man-

agement and Operational Challenges 22 (2017).

* Criticism of the Board has been severe. See, eg., Cruz Ren-

don v. Holder, 603 F.3d 1104, 1111 2.3 (9th Cir. 2010) (We are

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

fundamental disregard for the nghts of individuals who look to

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

casm of the IJ seem more appropriate to a court television show

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

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

example of sloppy adjudication, it contravened considerable prec-

edent.”); Galina v. INS, 213 F.3d 955, 958 (7th Cir. 2000) (‘The

elementary principles of administrative law, the rules of logic,

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

other cases.”).

Yet, despite the BLA’s shortcomings (understandable

as they perhaps may be), Auer nevertheless compels

federal judges to afford significant deference to inter-

pretations of ambiguous immigration regulations. And

as previously explained, some circuits have even ex-

tended Auer deference to single-judge, unpublished

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

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

at 227-30. That practice is misguided. The BIA’s infor-

mal adjudicatory processes do not live up to the “cher-

ished judicial tradition.” See Morgan, 304 U.S. at 22.

As the Ninth Circuit correctly explained in Lezama-

Garcia v. Holder, 666 F.3d 518 (9th Cir. 2011), single-

member BIA orders are “non-precedential,” often ne-

glect to “explain [their] reasoning,” and therefore fail

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

Id. at 532; Auer, 519 U.S. at 462. Put simply: “Defer-

ence is earned; it is not a birthright.” See Kadia, 501

F.3d at 821.

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

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

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

penalty” will be more important to non-citizens than

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

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

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

nature of deportation,” this Court has taken great care

when reviewing removal cases. See Jordan v. De

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

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

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

that the Fifth Amendment entitles non-citizens to due

process in removal proceeding); INS v. Cardoza-Fon-

seca, 480 U.S. 421, 449 (1987) (holding that ambigui-

ties in deportation provisions should be construed in

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

have consistently tried to “promote efficiency, fairness,

and predictability” in immigration law. Mellouli, 135

S. Ct. at 1987.

But Auer deference compels judges to abandon ful-

some checks on the severity of deportation. See Perez,

135 S. Ct. at 1221 (Thomas, J., concurring in the judg-

ment) (“When courts refuse even to decide what the

best interpretation is under the law, they abandon the

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

of BLA appeals concern removal orders and applica-

tions for relief from removal. The BIA’s interpretation

of an ambiguous regulation often will be outcome-de-

terminative. See, e.g., Zhang, 617 F.3d at 660 (denying

petition for review, even though the BIA’s interpreta-

tion of regulation was “anything but airtight”). So long

as Auer remains good law, however, Article III judges

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

who administer and enforce the immigration laws. See

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

judgment).

* + *

For these reasons, Auer deference should not apply

where quasi-judicial agencies interpret regulations

through adjudication—and particularly not with re-

* When Auer deference applies, courts are necessarily pre-

cluded from construing regulatory ambiguities in favor of non-cit-

izens. See Cardoza-Fonseca, 480 U.S. at 449. But fundamental

rules of construction should overcome doctrines of administrative

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

in the judgment) ([RJegulations should be interpreted like any

other law.”); see also Nat'l Ass'n of Home Builders v. Defs. of Wild-

life, 551 U.S. 644, 668-69 (2007) (invoking the surplusage canon

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

U.S. at 170 (invoking the general-specific canon when interpret-

ing a regulation).

spect to “relatively informal” non-precedential inter-

pretations offered by understaffed and underfunded

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

655-56. Compelling deference to such decisions places

reviewing courts “in the impossible position of having

to uphold as reasonable on Tuesday one construction

that is completely antithetical to another construction

[that the court] affirmed as reasonable the Monday be-

fore.” Lin v. U.S. Dep't of Justice, 416 F.3d 184, 190 (2d

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

1996) (‘An agency cannot merely flit serendipitously

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

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

Applying traditional Skidmore principles, however,

would avoid this problem. Quasi-judicial agencies like

the BIA would receive deference for only carefully rea-

soned, long-held positions, according to the care and

logical power of their decisions—not simply because of

their status as quasi-judicial agency adjudicators. C/.

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

CONCLUSION

For the foregoing reasons, the judgment of the court

of appeals should be reversed.

Respectfully submitted,

CHARLES ROTH JEAN-CLAUDE ANDRE *

NATIONAL IMMIGRANT ANDREW B. TALAI

JUSTICE CENTER GERRY B. HIRSCHFELD

208 S. LaSalle Street, SIDLEY AUSTIN LLP

Suite 1300 555 W. Fifth Street,

Chicago, IL 60604 Suite 4000

(312) 660-1613 Los Angeles, CA 90013

(213) 896-6000

RUSSELL ABRUTYN jeandre@sidley.com

WILLIAM A. STOCK

AMERICAN IMMIGRATION DEREK A. WEBB

LAWYERS ASSOCIATION SIDLEY AUSTIN LLP

1331 G Street, N.W. 1501 K Street, N.W.

Suite 300 Washington, D.C. 20005

Washington, D.C. 20005 (202) 736-8000

(202) 507-7600

Counsel for Amici Curiae

January 31, 2019

* Counsel of Record

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