Amicus Curiae Brief — Kim v. Holder (No. 08-1356)

Supreme Court, U.S

FILED

\yP (a) JUN 4 - 2003

OFFICE OF THE CLERK

No. 08-1356

Jn the Supreme Court of the Anited States

SUNGWOOK KIM,

Petitioner,

Vv.

ERIC H. HOLDER, JR.

Respondent.

On Petition for a Writ of Certiorari to

the United States Court of Appeals

for the Eighth Circuit

BRIEF OF CAPITAL AREA

IMMIGRANTS’ RIGHTS COALITION AND

CASA DE MARYLAND AS AMICI CURIAE

IN SUPPORT OF PETITIONER

ANDREW A. NICELY

Counsel of Record

SAUMYA MANOHAR

Mayer Brown LLP

1909 K Street, NW

Washington, DC 20006

(202) 263-3000

Counsel for Amici Curtae

l

TABLE OF CONTENTS

INTEREST OF THE AMICI CURIAE

INTRODUCTION AND SUMMARY OF

PIE sisi. 0isssdecadn wideccedvdoes aeaansAae en ee 2

ARGUMENT

I. The Petition Illuminates Two Mature

Circuit Splits That Promise To Endure

Until This Court Resolves Them. ........................0. 6

A. The Courts Of Appeals Have Sharply

Divided On The Applicability Of Section

L256 "TO HOMOVAl ACTIOUIG, 5 vicccsnicccccccesscncevsssecsss 6

. The Courts Of Appeals Also Have

Inconsistently Applied Chevron And

The Rule Of Lenity When Reviewing

Agency Interpretations Of The INA. ............... 9

. The Petition Raises Important And

Recurring Issues That, If Resolved By This

Court, Will Promote Fairness And

Consistency In The Application Of The

SOS TI in. ore sinisccssensccacackecisescccinatuarcanen 15

CONCLUSION

ll

TABLE OF AUTHORITIES

CASES

Ali v. Reno, 22 F.3d 442 (2d Cir. 1994)

Asika v. Ashcroft,

362 F.3d 264 (4th Cir. 2004)

Bah v. Mukasey,

529 F.3d 99 (2d Cir. 2008)

Bamidele v. INS,

99 F.3d 557 (3d Cir. 1996)

Benslimane v. Gonzales,

430 F.3d 828 (7th Cir. 2005)

Bonetti v. Rogers, 356 U.S. 691 (1958)

Chen v. Dep't of Justice,

426 F.3d 104 (2d Cir. 2005)

Chevron U.S.A., Inc. v. Natural Resources

Defense Council, Inc.,

ee passim

Choe v. INS,

11 F.3d 925 (9th Cir. 1993)

Costello v. INS, 376 U.S. 120 (1964)

De Osorio v. INS,

10 F.3d 1034 (4th Cir. 1993)

Dion v. Sec’y of HHS,

re eee COO Cay, 1987) ............ccccccccacesccces Oy

Elias v. Gonzales, 490 F.3d 444 (6th Cir. 2007)

Fiadjoe v. Att'y Gen.,

411 F.3d 135 (3d Cir. 2005)

Fong Haw Tan v. Phelan, 333 U.S. 6 (1948)

Garcia v Att’y Gen.,

553 F.3d 724 (3d Cir. 2009)

ill

TABLE OF AUTHORITIES—continued

Goncalves v. Reno,

144 F.3d 110 (1st Cir. 1998)

Graham v. Richardson, 403 U.S. 365 (1971)

Hellenic Lines Ltd. v. Rhoditis,

398 U.S. 306 (1970)

Henry v. INS, 8 F.3d 426 (7th Cir. 1993)

Iao v. Gonzales, 400 F.3d 530 (7th Cir. 2005)

Iavorski v. INS,

232 F.3d 124 (2d Cir. 2000)

INS v. Aguirre-Agutrre,

526 U.S. 415 (1999)

INS v. Cardoza-Fonseca,

480 U.S. 421 (1987)

INS v. Errico, 385 U.S. 214 (1966)

INS v. St. Cyr, 533 U.S. 289 (2001)

Jurado-Gutierrez v. Greene,

190 F.3d 1135 (10th Cir. 1999)

Korytnyuk v. Ashcroft,

396 F.3d 272 (3d Cir. 2005)

Kourski v. Ashcroft,

355 F.3d 1038 (7th Cir. 2004)

Leocal v. Ashcroft,

543 U.S. 1 (2004)

Matter of S--,9 lt. & N. Dec. 548

(Att'y (eet. BOGE) ..6.0siic css ablicand ee taeime eee 4

Mayers v. INS,

175 F.3d 1289 (11th Cir. 1999)

Mece v. Gonzales,

415 F.3d 562 (6th Cir. 2005)

1V

TABLE OF AUTHORITIES—continued

Ming Shi Xue v. BIA,

439 F.3d 111 (2d Cir. 2006)

Monet v. INS, 791 F.2d 752 (9th Cir. 1986)

N'Diom v. Gonzales,

442 F.3d 494 (6th Cir. 2006)

Naderpour v. INS, 52 F.3d 731 (8th Cir. 1995)

Ng Fung Ho v. White, 259 U.S. 276 (1922)

Oloteo v. INS, 643 F.2d 679 (9th Cir. 1981)

Omar v. INS, 266 Fed. Appx. 37 (2d Cir. 2008)........ 8

Omar v. INS, 298 F.3d 710 (8th Cir. 2002).............

Pak v. Reno, 196 F.3d 666 (6th Cir. 1999)

Patel v. Ashcroft, 294 F.3d 465 (3d Cir. 2002)

Recinos de Leon v. Gonzales,

400 F.3d 1185 (9th Cir. 2005)

Rosario v. INS, 962 F.2d 220 (2d Cir. 1992)

Sanchez v. Winfrey,

134 Fed. Appx. 720 (5th Cir. 2005)

Savoury v. Att’y Gen.,

S49 FG LST C1 i Cam, BOG ook nicccevecccivccssccsess 8

Sherifi v. INS, 260 F.3d 737 (7th Cir. 2001) 13. i2

Sholla v. Gonzales,

492 F.3d 946 (8th Cir. 2007)

Ssali v. Gonzales, 424 F.3d 556 (7th Cir. 2005)

Tapia Garcia v. INS,

Be Fe Be Oe 0 Ge GA, BOI asic nvesicsecucdeedseccocences 12

U.S. Dept of the Navy v. Fed. Labor Relations

Autn., 840 &.24a 1131 Ge Cir. 16GB) ........ccs000....:. 9

V

TABLE OF AUTHORITIES— continued

Wang v. Att’y Gen..,

423 F.3d 260 (3d Cir. 2005)

STATUTES, RULES AND REGULATIONS

8 C.F.R. 3.1(h)(1)G)-Gin)

8 U.S.C. 1101(a)(43)

8 U.S.C. 1158(a)

8 U.S.C. 1253(h)

8 U.S.C.

8 U.S.C. 1256(a)

U.S. Const. art. I, § 8, cl

OTHER AUTHORITIES

Michael J. Wishnie, Laboratories of Bigotry?

Devolution of the Immigration Power,

Equal Protection, and Federalism, 76

PO. tls Be BEV, SOS, GOT COED wee vvcneccaccsccsncesscacs 16

BRIEF OF THE CAPITAL AREA

IMMIGRANTS’ RIGHTS COALITION AND

CASA DE MARYLAND AS AMICI CURIAE

IN SUPPORT OF PETITIONER

INTEREST OF THE AMICI CURIAE!

Amicus curiae Capital Area Immigrants’ Rights

(CAIR) Coalition is an_ association of legal

organizations, advocacy groups, and social service

providers serving the immigrant community in the

Washington, D.C. metropolitan area. CAIR was first

formed in 1987, under the auspices of the Lawyers

Committee for Civil Rights and Urban Affairs, and

became an independent non-profit organization in

2000. The CAIR Coalition acts as the primary source

of legal representation for detained immigrants in

the Washington metropolitan area — including many

legal permanent’ residents awaiting removal

proceedings and deportation.

As Maryland’s largest non-profit organization

focused on the rights of immigrants, amicus curiae

CASA de Maryland, Inc. has sought since 1987 to

create economically and_ ethnically’ diverse

communities in which all people can participate and

benefit fully, regardless of their immigration status.

CASA upholds this vision by, among other things,

providing employment placement, vocational

1 Pursuant to Rule 37.6, amici affirm that no counsel for a

party authored this brief in whole or in part and that no person

other than amict and their counsel made a monetary

contribution to its preparation or submission. Counsel of record

for all parties received notice at least 10 days prior to the due

date of the intention of amici to file this brief. The parties’

letters consenting to the filing of this brief have been filed with

the Clerk’s office.

2

training, financial literacy programs, English for

Speakers of Other Languages instruction, citizenship

classes, legal services, health education, social

services, and community organizing. In addition,

CASA’s legal department has a deep commitment to

protecting and advancing the rights of immigrants in

Maryland through civil rights impact litigation.

Because of their extensive advocacy and legal

work on behalf of immigrant communities in the

Washington metropolitan area, amici have a keen

interest in the fair and just administration of the

nation’s immigration laws. Accordingly, amici urge

the Court to grant Mr. Kim’s petition for certiorari,

reverse the Eighth Circuit’s decision below, and

vacate the Immigration Judge’s order of removal.

INTRODUCTION AND

SUMMARY OF ARGUMENT

This Court recognized nearly a century ago that

the deportation of one who “claims to be a citizen

obviously deprives him of liberty.” Ng Fung Ho v.

White, 259 U.S. 276, 284 (1922). These due process

considerations are no less weighty in the case of an

alien who has obtained lawful permanent resident

(“LPR”) status. See Hellenic Lines Ltd. v. Rhoditis,

398 U.S. 306, 309-310 (1970). Congress recognized

as much when it established a five-year limitations

period within which the Attorney General must act

to rescind the LPR status of an alien who, at the

time, was not eligible for adjustment to such status.

See 8 U.S.C. 1256(a). The limitations period, and the

due process interest it protects, are meaningless if

the Attorney General can remove an alien more

than five years after he obtained LPR status on the

ground that the alien was ineligible for that status.

Section 1256(a) of the Immigration § and

Nationality Act (“INA”) unambiguously applies to

proceedings brought by the Attorney General to

revoke an alien’s status as a lawful permanent

resident (“LPR”) on the ground that the alien was

not eligible for LPR status. The question whether

the five-year limitations period also applies to

removal proceedings based on a lack of eligibility for

LPR status, however, has directly split the circuit

courts. In this case, the petitioner, Mr. Sungwook

Kim, was granted LPR status in 1992. Pet. 4.

Unbeknownst to Mr. Kim, persons holding

themselves out as attorneys who handled his LPR

application apparently bribed a then-agent of the

Immigration and Naturalization Service (“INS”, now

known as the U.S. Citizenship and Immigration

Services division of the Department of Homeland

Security) to secure the approval of Mr. Kim’s

application. Eleven years later, after the INS agent

admitted to accepting bribes in exchange for

approving LPR _ applications, the government

initiated removal proceedings against Mr. Kim on

the ground that he was not an LPR and therefore

was not admissible into the United States. Pet. 5.

The Eighth Circuit held that Section 1256(a) did

not reach Mr. Kim’s situation, reasoning that the

limitations period “applfies] to the rescission of

status adjustments” only, “not [to] removal

proceedings.” Pet. 8a. In so holding, the court

rejected Mr. Kim’s argument that, by not applying

the five-year statute of limitations to removal

proceedings where the government seeks to deport

an LPR because he or she was improperly granted an

adjustment of status, the court effectively would

write the limitations period of Section 1256(a) out of

existence. The Eighth Circuit thus affirmed the

Immigration Judge’s decision to remove Mr. Kim.

Pet. 13a.

The Eighth Circuit expressly declined to follow,

and its holding squarely conflicts with, the

conclusion reached by the Third Circuit in Bamidele

v. INS, 99 F.3d 557 (3d Cir. 1996) and reiterated in

Garcia v. Attorney General, 553 F.3d 724 (3d Cir.

2009). See Pet. 7a. At the same time, the Eighth

Circuit aligned itself with the conclusion reached by

the Ninth Circuit in earlier cases. See Pet. 8a. The

decision below thus deepens an existing circuit split

on a frequently recurring question of statutory

interpretation.

The Eighth Circuit’s holding also highlights and

exacerbates a related, broader split among the circuit

courts. In reaching its decision, the court below

relied heavily on a 1962 opinion from the Attorney

General interpreting Section 1256(a) as applying

only to rescission proceedings. See Pet. 8a-9a (citing

Matter of S--, 9 l. & N. Dec. 548, 548 (Att’y Gen.

1962)). Like the Fourth Circuit in Asika v. Ashcroft,

362 F.3d 264, 270-271 (4th Cir. 2004), the Eighth

Circuit found that the Attorney General’s

interpretation was entitled to deference under

Chevron U.S.A., Inc. v. Natural Resources Defense

Council, inc., 467 U.S. 837 (1984). By contrast, both

the Second and Third Circuits have held that the

Attorney General's interpretation of Section 1256(a)

does not warrant Chevron deference, because “[a]

statute of limitations is not a matter within the

particular expertise of the INS.” Bamidele, 99 F.3d

at 561 (internal quotation omitted); accord Javorski

v. INS, 232 F.3d 124, 133 (2d Cir. 2000). These

courts instead have held that the limitations period

“sé

is “a clearly legal issue that courts are better

equipped to handle.” Bamidele, 99 F.3d at 561

(quoting Dion v. Sec’y of HHS, 823 F.2d 669, 673 (1st

Cir. 1987).

The circuit split over the role of Chevron in

interpreting the limitations provisions of Section

1256(a) is an offshoot of a larger split over when

deference is due to agency interpretations of the

INA. Interpretive and other legal questions abound

in INA cases, and the Courts of Appeals are in

fundamental disagreement as to whether Chevron

deference applies to pure questions of law arising

under the immigration statutes. Some hold that

Chevron applies across the board, while others have

ruled that deference is due only where an ambiguous

statute implicates policy considerations that are

within the agency’s area of expertise.

‘he importance of this split is heightened by the

fact that, if Chevron deference does not apply,

ambiguities in the INA must be _ resolved in

accordance with the rule of lenity. That canon of

interpretation, which counsels that ambiguous

statutory provisions must be construed in favor of

the alien, is squarely at odds with the outcome that

would be reached by applying Chevron deference in

the vast majority of immigration cases that reach the

federal courts.

Moreover, the constitutional requirement that

Congress implement a “uniform rule of

naturalization,” the frequently unreliable nature of

decision-making in the immigration courts, and the

severe and apparently arbitrary way that removal

actions affect green-card holders in situations like

Mr. Kim’s further demonstrate the importance of

6

resolving the circuit split over the application of

Chevron in the INA context.

ARGUMENT

The Petition LIlluminates Two Mature

Circuit Splits That Promise To Endure

Until This Court Resolves Them.

A. The Courts Of Appeals Have Sharply

Divided On The Applicability Of Section

1256 To Removal Actions.

The disagreement among the circuit courts over

the scope of the five-year limitations period is direct

and unavoidable. On the basis of a 1997 amendment

to the limitations provision, the Eighth Cuircuit’s

decision stated squarely that the “plain meaning” of

the statute compels the conclusion that “rescission

fof status] and removal [are] separate” and that the

limitations period only applies to the former. Pet.

8a. The Eighth Circuit’s decision conforms with

cases 1n the Ninth Circuit that read Section 1256 to

“plainly, unequivocally and unambiguously” mean

that “Congress has seen fit to do away with statutes

of hmitation with regard to deportation proceedings.”

Oloteo v. INS, 643 F.2d 679, 682-683 (9th Cir. 1981);

see also, e.g., Choe v. INS, 11 F.3d 925, 928 n.4 (9th

Cir. 1993) (“The bottom line is [Section 1256] does

not prevent the removal of adjusted aliens.”); Monet

v. INS, 791 F.2d 752, 754 (9th Cir. 1986) (extending

“Oloteo to exclude application of the five year

limitations period to deportation § proceedings

regardless of the method of the alien’s admission’).

By contrast, the Third Circuit in Bamidele

concluded that “the running of the lhmitation period

bars the rescission of * * * permanent resident status

and, in the absence of the commission of any other

7

offense, thereby bars initiation of deportation

proceedings.” 99 F.3d at 563. In Garcia, the Third

Circuit held that the 1997 amendment cited in the

opinion below “does not invalidate nor modify nor

refer in any respect to the statutory language ‘within

five years’ after the adjustment.” 553 F.3d at 728.

Rather, the amendment’s text included only “two

clear provisions,” which allowed removal without

rescission and permitted automatic rescission upon

the entry of a removal order. Ibid.

The Eighth and Third Circuits have, in fact,

expressly recognized the existence of this

irreconcilable conflict. See Pet. 7a; Garcia, 553 F.3d

at 728; Bamidele, 99 F.3d at 563 & n.8. But the

confusion among the circuits on this question does

not stop there.

The Fourth Circuit has taken a third approach.

In Asika, that court held that Section 1256 “provides

no express guidance whatsoever on the * * * question

of whether the five-year limitation on rescission

actions must also apply to deportation actions.” 362

K.3d at 269. As such, although the Fourth Circuit

believed that the Third Circuit’s reading possessed

“some force,” it held that “the statute does not speak

unambiguously to the precise question at issue.” /d.

at 270.¢

In reaching this impasse, the circuit courts have disagreed

whether applying the five-year limitations period only to pure

rescission actions comports with the principal that statutes

must be construed to give effect to all of their provisions. The

Third Circuit has held that failing to apply the limitations pe

riod in circumstances like Mr. Kim’s would “constru([e the limi

tations period] out of existence.” Bamidele, 99 F.3d at 564. The

Fourth Circuit rejected this reading of the statute, reasoning

that the limitations period provides “an important safeguard to

8

The circuits have, in other words, variously held

(1) that the limitations period in Section 1256 applies

to removal actions based on prior ineligibility for

status adjustments, (2) that the statutory language

compels the opposite conclusion, and (3) that the

language is ambiguous. Thus, among the four

circuits to decide the issue, all three realistically

conceivable positions on the meaning of the statute

have been taken.

Further, the question whether Section 1256 ever

applies to removal actions promises to endure absent

this Court’s intervention. Situations potentially

implicating the five-year limitations period arise not

only when a rogue INS agent accepts bribes, but also

in cases of actual “fraud” on the part of the applicant

and in cases of agency “error.” Savoury v. Att’y Gen.,

449 F.3d 1307, 1316 (11th Cir. 2006). Indeed, at

least three other circuits have been presented with

factually similar suits that could have, but did not,

raise the issue of the applicability of Section 1256.

See, e.g., Omar v. INS, 266 Fed. Appx. 37 (2d Cir.

2008) (confronting a situation in which an alien

given LPR status more than five years previously

was ordered removed because he was ineligible for

the status at that time); Savoury, 449 F.3d 1307

(same); Sanchez v. Winfrey, 134 Fed. Appx. 720 (Sth

Cir. 2005) (same). The Third and Ninth Circuits also

repeatedly have been confronted with cases

presenting similar facts. See Pet. 18 n.7. The time is

thus ripe for this Court to resolve the question.

eliens,’ because “rescission proceedings’—unlike “deportation

proceedings’—-give aliens “few, if any, procedural protections.”

Astka, 362 F.3d at 270

9

B. The Courts Of Appeals Also Have

Inconsistently Applied Chevron And The

Rule Of Lenity When Reviewing Agency

Interpretations Of The INA.

The Eighth Circuit’s decision also exacerbates a

second split that exists among the circuits. This split

concerns whether or not agency determinations of

purely legal questions—such as the construction of a

statute of limitations—deserve Chevron deference.

In Chevron, of course, this Court formulated a

two-step test for determining whether to defer to an

agency’s interpretation of a statute whose meaning is

contested. The first step requires that courts use

“traditional tools of statutory construction” to

determine “whether Congress has directly spoken to

the precise question at issue.” Chevron, 467 U.S. at

842 & 843 n.9. If not, then courts may proceed to the

second step and determine whether the agency’s

interpretation is “reasonable.” Jd. at 845. If it is, the

agency's interpretation must be affirmed.

In holding that the limitations period in Section

1256 applies in removal actions, the Third Circuit

determined that “[a] statute of limitations is not a

matter within the particular expertise of the INS”

but instead presents “a clearly legal issue that courts

are better equipped to handle.” Bamidele, 99 F.3d at

561 (quoting Dion, 823 F.2d at 673). Accordingly, the

Third Circuit expressly declined to give the INS “any

presumption of special expertise” in the

interpretation of 8 U.S.C. 1256(a). Id. at 562

(quoting U.S. Dep't of the Navy v. Fed. Labor

Relations Auth., 840 F.2d 1131, 1134 (3d Cir. 1988).

The court adhered to this stance in Garcia. See 553

F.3d at 727-728.

10

The Eighth Circuit in this case, by contrast,

chose to apply Chevron and “defer to the Attorney

General’s interpretation of the statute” “[t]o the

extent there is any doubt as to [its] plain meaning.”

Pet. 8a-9a. In doing so, the Eighth Circuit leaned

heavily on the Fourth Circuit’s analysis in Asika.

That court, in turn, recognized that there was “some

force” to the argument that the five-year hmitations

period should apply to removal claims like Mr. Kim’s.

362 F.3d at 270. Nevertheless, it held that this “is

not the only way in which the Act may be interpreted

to give independent effect to [Section 1256(a)].” Ibid.

(emphasis in original). Because the Fourth Circuit

believed that the statute was open to multiple

interpretations, it held that its “inquiry under

Chevron [was] simply to ask whether the Attorney

General’s position ‘is based on a_ permissible

construction of the statute.” Ibid. (quoting Chevron,

467 U.S. at 848).

The confusion regarding Chevron’s applicability

to agency interpretations of the INA runs even

deeper, in two ways. First, the conflict reaches cases

interpreting provisions of the INA other than the

limitations period in Section 1256(a). Whenever a

question may be characterized as a pure question of

law outside the expertise of Citizenship and

Immigration Services, the same question of

Chevron’s applicability is presented. Unsurprisingly,

the courts that have considered the question in other

contexts have taken two very different approaches.

The Second Circuit, for example, has held in an

INA case that “[b]lecause the issue of whether a

limitations period creates a jurisdictional bar to

untimely claims is itself a question purely of

statutory construction, it fits squarely within the

11

initial step in the Chevron analysis.” Javorski, 232

F.3d at 133. There was thus no “danger of venturing

into areas of special agency expertise” and no

“special deference” was due under Chevron. Ibid.

Similarly, in determining whether a provision of the

Antiterrorism and Effective Death Penalty Act

applied retroactively, the Tenth Circuit squarely

held that “[dJetermining the statute’s temporal reach

does not involve any special agency expertise.”

Jurado-Gutierrez v. Greene, 190 F.3d 1135, 1147-

1148 (10th Cir. 1999). As such, the court analyzed

the issue “without affording any deference to the

Attorney General.” Jd. at 1148. The First, Sixth,

and Eleventh Circuits likewise have concluded that

deference is unwarranted when pure questions of

statutory interpretation are at issue. See Pak v.

Reno, 196 F.3d 666, 675 n.10 (6th Cir. 1999); Mayers

v. INS, 175 F.3d 1289, 1302 (llth Cir. 1999);

Goncalves v. Reno, 144 F.3d 110, 127 (1st Cir. 1998).

Like the Fourth and Eighth Circuits, however,

the Seventh Circuit has applied Chevron deference to

numcrous questions that arguably are pure matters

of law. Sce, e.g., Sherifit v. INS, 260 F.3d 737, 740

(7th Cir. 2001) (applying Chevron to BIA’s position

on the retroactive application of an amendment to

the INA); Henry v. INS, 8 F.3d 426, 434 (7th Cir.

1993) (applying Chevron to BIA’s interpretation of

the statutory requirements for a_ waiver of

deportation).

The circuit split over the application of Chevron

therefore goes well beyond the Section 1256 context

to infect many issues decided under the INA. In

particular, the courts have directly divided on the

question whether to defer to the agency’s

determination that particular INA provisions are or

12

are not retroactive. Compare, e.g., Pak, 196 F.3d at

675 n.10 (no Chevron deference), Jurado-Gutierrez,

190 F.3d at 1148, and Goncalves, 144 F.3d 110 (no

Chevron deference), with Sherifi, 260 F.3d at 740

(affording Chevron deference). To take another

example, the BIA frequently is required to decide

whether a particular criminal! offense constitutes an

“aggravated felony” within the meaning of 8 U.S.C.

1101(a)(43). The Tenth Circuit has held that such

determinations are entitled to Chevron deference,

Tapia Garcia v. INS, 237 F.3d 1216, 1221 (10th Cir.

2001), while the Third Circuit has reached the

opposite conclusion, Patel v. Ashcroft, 294 F.3d 465,

467 (3d Cir. 2002).

Both of these approaches to Chevron actually

trace to a common source—this Court’s opinion in

INS v. Cardoza-Fonseca, 480 U.S. 421 (1987). There,

this Court held that whether the “well-founded fear”

standard for asylum in 8 U.S.C. 1158(a) and the

“clear probability” standard for withholding of

deportation in 8 U.S.C. 1253(h) were identical was a

“pure question of statutory construction for the

courts to decide.” Jd. at 445-446; see also, e.g.,

Goncalves, 144 F.3d at 127 (quoting this language).

Cardoza-Fonseca also reiterated, however, that

Chevron deference is appropriate when a court is

confronted with a “question of interpretation * * * in

which the agency is required to apply * * * standards

to a particular set of facts.” 480 U.S. at 448.

The split over the appropriateness of Chevron

deference in INA cases presenting pure questions of

law also is deep in a substantive sense. If the INS

brings a removal proceeding against an alien and the

immigration judge refuses to order removal, the

agency's usual recourse is to appeal to the BIA and

13

then petition the Attorney General. See 8

C.F.R. 3.1(h)(1)(i)-Gii).. As a result, only aliens typi-

cally appeal to a federal court. Almost all deporta-

tion cases that reach the federal courts, therefore,

involve an agency determination that interprets the

INA contrary to the alien’s interest. As such, defer-

ence to the agency’s view under Chevron in INA

cases almost uniformly leads to interpretations of the

statute that run directly counter to the alien’s inter-

ests. Courts that decline to apply Chevron deference

in the INA context, on the other hand, will apply the

full panoply of interpretive tools when presented

with a question of law that falls fully within the

province of the courts.

While this much is true in many administrative

cases, the question of whether Chevron deference is

warranted is particularly important in the INA con-

text, because a presumption in favor of the alien oth-

erwise would apply. As this Court first articulated

over sixty years ago, the rule of lenity applies in INA

cases “because deportation is a drastic measure and

at times the equivalent of banishment or exile.”

Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948). As

such, when the immigration laws are of uncertain

meaning, those “doubts” are “resolve[d] * * * in favor

of’ the alien. Ibid. The rule of lenity has, in fact, be-

come a staple of this Court’s INA jurisprudence when

it interprets statutes that can lead to deportation or

criminal penalties. See, e.g., Leocal v. Ashcroft, 543

U.S. 1, 11 n.8 (2004); INS v. St. Cyr, 533 U.S. 289,

320 (2001); Cardoza-Fonseca, 480 U.S. at 449; INS v.

Errico, 385 U.S. 214, 225 (1966); Costello v. INS, 376

U.S. 120, 128 (1964); Bonetti v. Rogers, 356 U.S. 691,

$99 (1958).

14

Thus, both Chevron deference and the rule of len-

ity are deeply embedded in this Court’s jurispru-

dence. This Court’s post-Chevron immigration cases

also are consistent: The Court has twice declined to

defer to the agency’s statutory interpretation and

cited the rule of lenity in both decisions, which in-

volved the purely legal questions of retroactivity and

the potential equivalence of two standards. See St.

Cyr, 5383 U.S. 289; Cardoza-Fonseca, 480 U.S. 421.

In a third case, which involved the question of

whether particular factors had to be weighed in mak-

ing a deportation decision and therefore did not pre-

sent a pure question of law, the Court held that the

BIA’s interpretation was entitled to Chevron defer-

ence and made no mention of the rule of lenity. See

INS v. Aguirre-Aguirre, 526 U.S. 415 (1999). But

even as this Court’s cases have been consistent, its

guidance to the lower courts has been restricted to

the sentences of Cardoza-Fonseca quoted above, and

the lower courts have not reached a consensus.

‘Thus, in cases presenting pure questions of law,

the circuit courts currently see a choice between

compcting interpretive presumptions that are almost

certain to lead to contrary results. As the Second

Circuit put it, on the one hand, “[l]ingering

ambiguities in a statute concerning the forfeiture of

residence in this country should be resolved in favor

of the alien.” Ali v. Reno, 22 F.3d 442, 446 (2d Cir.

1994) (internal citations omitted). But “fojn the

other hand, a court will accord substantial deference

to an agency’s construction of regulations * * * .”

Ibid. (Gnternal citations omitted).

The circuits have not reached a_ uniform

reconciliation of these competing principles in

immigration cases. See, e.g., Rosario v. INS, 962

15

F.2d 220 (2d Cir. 1992) (applying Chevron to the

agency's interpretation of the statutory requirements

for relief from deportation, but rejecting that

interpretation based in part on the rule of lenity); De

Osorio v. INS, 10 F.3d 1034, 1036 (4th Cir. 1993)

(applying both Chevron and the rule of lenity, and

upholding the agency’s view’ regarding’ the

retroactivity of an amendment to the INA); Omar v.

INS, 298 F.3d 710, 715-716 (8th Cir. 2002), overruled

in part on other grounds by Leocal v. Ashcroft, 543

U.S. 1 (2004) (holding that Chevron did not apply but

omitting to consider rule of lenity in upholding BIA’s

determination that immigrant’s criminal conviction

constituted an “aggravated felony”); Naderpour v.

INS, 52 F.3d 731 (8th Cir. 1995) (applying rule of

lenity and concluding that appeal to BIA was timely,

without considering whether agency’s interpretation

of the applicable rules was entitled to Chevron

deference).

The Court can bring much needed clarity to this

area of the law by granting the petition and

confirming, on the one hand, that Chevron does not

apply to agency interpretations involving pure

questions of law, while on the other hand, the rule of

lenity requires that ambiguous provisions of the INA

be construed in the manner favoring the immigrant,

particularly when the provision in controversy may

lead to deportation.

Il. The Petition Raises Important And

Recurring Issues That, If Resolved By This

Court, Will Promote Fairness And

Consistency In The Application Of The

Immigration Laws.

While any conflict among the courts of appeals

on a matter of federal law is a matter for concern,

16

certiorarl review is particularly appropriate where

the circuits are squarely at odds regarding the

application of the nation’s immigration laws. Such a

split provides conflicting guidance to the BIA about

whether particular interpretations of the

immigration laws will be upheld on appeal. Because

courts of appeals disagree on whether a five-year

statute of limitations applies to removal proceedings

brought against a legal permanent resident on

grounds that he or she was not eligible for an

adjustment of status, the BIA presently is confronted

with contradictory authority on the same rule of law.

Moreover, the Constitution requires Congress to

implement a “uniform rule of naturalization.” U.S.

Const. art. I, § 8, cl. 4; see also Graham v.

Richardson, 403 U.S. 365, 382 (1971) (acknowledging

that the Naturalization Clause imposes an “explicit

constitutional requirement of uniformity” in the

execution of “laws on the subject of citizenship”);

Michael J. Wishnie, Laboratories of Bigotry?

Devolution of the Immigration Power, Equal

Protection, and Federalism, 76 N.Y.U. L. Rev. 493,

537 (2001) (arguing that the Constitution permits

Congress to exercise the immigration power “only in

a manner that is geographically consistent across the

nation”). Disagreement regarding the _ proper

interpretation of Section 1256(a), the applicability of

Chevron to provisions of the INA that raise purely

legal questions, and how to reconcile the rule of

lenity with Chevron deference has resulted in serious

confusion in the lower courts and dramatic variation

in the administration of the Nation’s immigration

laws.

A certiorarl grant is especially appropriate in

this case for two further reasons. First, the issue of

17

whether Chevron deference is warranted in cases

presenting pure questions of law under the INA is

especially deserving of this Court’s time because it is

clear that, as a general matter, many of the stewards

of the country’s immigration system are not

deserving of judicial deference. As Judge Posner

unhappily observed, the “adjudication of

[immigration] cases at the administrative level has

fallen below the minimum standards of legal justice”

and, as a result, the Seventh Circuit reverses the

BIA about 40% of the time. Benslimane v. Gonzales,

430 F.3d 828, 830 (7th Cir. 2005). It understates the

issue to say that Judge Posner’s view is widely

shared.3

3 See Bah v. Mukasey, 529 F.3d 99, 111 (2d Cir. 2008) (“[W]e

are deeply disturbed by what we perceive to be fairly obvious

errors in the agency’s application of its own regulatory frame-

work. Congress has entrusted the agency with the weighty and

consequential task of granting safe harbor to the deserving of

those who flee to this country for protection. The claims of the

petitioners before us, as set forth below, did not receive the type

of careful analysis they were due”); N’Diom v. Gonzales, 442

F.3d 494, 500 (6th Cir. 2006) (Martin, J., concurring) (observing

“the significantly increasing rate at which adjudication lacking

in reason, logic, and effort” reaches the federal courts); Ming

Shi Xue v. BIA, 439 F.3d 111, 114 (2d Cir. 2006) (“[T]he position

of overburdened immigration judges and overworked courts has

become a matter of wide concern.”); Chen v. Dep't of Justice, 426

F.3d 104, 115 (2d Cir. 2005) (finding that the Immigration

Judge’s holding was “grounded solely on speculation and conjec-

ture”); Wang v. Att'y Gen., 423 F.3d 260, 269 (3d Cir. 2005)

(“The tone, the tenor, the disparagement, and the sarcasm oft

the IJ seem more appropriate to a court television show than a

federal court proceeding.’); Ftadjoe v. Att'y Gen., 411 F.3d 135,

154-55 (3d Cir. 2005) (noting the IJ’s “hostile” and “extraordi

narily abusive” behavior toward petitioner “by itself would re

quire a rejection of his credibility finding’); Korytnyuk v

Ashcroft, 396 F.3d 272, 292 (3d Cir. 2005) (“[I]t 1s the IJ’s con

18

Second, as this Court repeatedly has recognized,

deportation is a severe punishment with far-reaching

consequences. See, e.g., Cardoza-Fonseca, 480 U.S.

at 449 (“[D]eportation is always a harsh measure.”);

Ng Fung Ho, 259 U.S. at 284 (deportation may

“result * * * in loss of both property and life, or of all

that makes life worth living”). This is particularly

true for legal permanent residents who have enjoyed

LPR status for more than five years. By that point,

permanent residents, like Mr. Kim, have developed

deep ties of work, family, and friendship that make

deportation an exceptionally harsh sanction. This is

even more true when—as in the case of Mr. Kim

the government rescinds LPR status and initiates

deportation proceedings for reasons completely

unrelated to any misconduct by the alien.

clusion, not [the petitioner’s] testimony, that ‘strains credu

lity”); Ssali v. Gonzales, 424 F.3d 556, 563 (7th Cir. 2005)

(“This very significant mistake suggests that the Board was not

aware of the most basic facts of [the petitioner's] case”); Kourskt

v. Ashcroft, 355 F.3d 1038, 1039 (7th Cir. 2004) (“There is a

gaping hole in the reasoning of the board and the immigration

judge.”); Elias v. Gonzales, 490 F.3d 444, 452 (6th Cir. 2007)

(noting that the IJ's “intemperate” manner and sarcasm with

petitioner “raised substantial questions as to his bias and hos

tility toward” the asylum applicant); Sholla v. Gonzales, 492

F.3d 946, 952 (8th Cir. 2007) (IJ denied asylum even though

“the record compels any reasonable factfinder to conclude that

[the applicant] suffered past persecution on a_ protected

ground”); Mece v. Gonzales, 415 F.3d 562, 572 (6th Cir. 2005)

(“The Board's failure to find clear error in the immigration

judge's adverse credibility determination leaves us, we are

frank to say, more than a little puzzled.”); lao v. Gonzales, 400

F.3d 530, 533 (7th Cir. 2005) (“The immigration judge's opinion

cannot be regarded as reasoned.”); Recinos de Leon v. Gonzales,

400 F.3d 1185, 1189 (9th Cir. 2005) (“[l]t is impossible for us to

decipher what legal and factual reasons support the IJ's deci

sion. )

Lg

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

ANDREW A. NICELY

Counsel of Record

SAUMYA MANOHAR*

Mayer Brown LLP

1909 K Street, NW

Washington, DC 20006

(202) 263-3000

Counsel for Amici Curtae

JUNE 2009

*Admitted in New York only; not admitted in the District of

Columbia. Practicing under the supervision of firm principals